Standing Committee B

Second SittingTuesday 9 September 2003

[Mr. Roger Gale in the Chair]

Sexual Offences Bill [Lords]

Clause 1 - Rape

Amendment moved [this day]: No. 22, in 
clause 1, page 1, line 14, leave out from 'conviction' 
 to end of line 15 and insert— 
 '(a) if the offence occurs during or after an acknowledged sexual relationship between the parties to a term of 5 years imprisonment. 
 (b) otherwise, to imprisonment for life.'.—[Mr. Malins.]

Humfrey Malins: Welcome to the Chair, Mr. Gale—it is good to see you. Before lunch, I was referring to amendment No. 22, which sets out two types of rape. It reflects something of an artificial approach, but I drafted it to enable a discussion to take place on the difficulties faced by courts in respect of convictions for rape.
 I repeat my argument that rape is now an offence made up of a number of categories. The most straightforward and easy case for anyone to deal with is complete stranger rape. It forms a minority of rape cases, but it is more straightforward in terms of consent, the trial, and the jury's position in assessing the evidence. Other cases are not so straightforward, involving, for example, an allegation of rape either by an existing partner or by a person with whom there had been a previous sexual relationship. 
 I wish to set out the sort of problem that a jury might face. Let us consider a 26-year-old man with an otherwise unblemished reputation who is in work, of good character and who had had a sexual relationship with a woman of a similar age. The relationship finishes. Some months later, they meet again and drink together at a club. Perhaps after pressure from the young man, sex takes place during the evening. Let us suppose that the young man is charged with rape because the woman said that she did not consent to sex and that she was under severe pressure. The case goes before the court. 
 Juries find such cases very difficult to decide, as do the courts to pass sentence. One reason why there are so many acquittals in rape cases is that a jury faced with such a young man will often strain every sinew to bring in a not guilty verdict, mainly because the sentence for such a young man with no previous convictions who is involved in such a fight in the Crown court will inevitably be five years or thereabouts. They jury does not want that to happen.

Sandra Gidley: I am concerned about the continual references to unblemished records and no previous convictions. Such matters are irrelevant in such cases—clearly any person who is taken to court for the first time has an unblemished record and no
 previous convictions. We must try to get away from arguments about history. Will the hon. Gentleman explain why such matters are so important?

Humfrey Malins: With great respect, my point is a very good one. [Laughter.] I shall tell the hon. Lady why. Let us suppose that the defendant is giving evidence. Before he does so, his barrister will ask him if he has ever been in any kind of trouble before. If the answer is no, he is thus revealed as a man of previous good character. The judge, in summing up, will give the jury a specific direction as to his unblemished character and how that should be taken into account. That relevant point illustrates the difficulty faced by juries.
 We all know that sexual offences, especially rape, are under-reported. One hesitates to use statistics, because they are not entirely reliable. There could be X thousand rapes reported in one year: some cases go to court in the same year, some do not go to court until the next year and some only go to court for sentencing the year after. Although year-on-year figures can never be deemed entirely accurate, they may be illustrative none the less. 
 The Committee will be interested to hear that in 2000–01 some 8,000 rapes were recorded by the police. Surely, that was not the total number of rapes committed. The findings of the British crime survey—a computerised self-completion survey of some 30,000 or so adults—gives a much more complete picture, because it covers unreported, and therefore unrecorded, crimes. The figures from that survey suggest that only one in seven rapes are reported to the police and thereby recorded. 
 Why is there so alarmingly little reporting of rape? In most cases, women are raped or sexually assaulted by men they know. Around one half of all rapes are committed by a current partner and a high proportion of rapes are committed by a previous partner. That is one factor that makes it less likely that a woman who has been raped will go to the police. In contrast, stranger rape accounts for less than 10 per cent. of all rapes. 
 What happens when rapes are recorded and investigated? Only 25 per cent. of the 8,000 rapes reported in 2000–01 resulted in a court case. Of the 2,000 cases that went to court only 550 or thereabouts—approximately 25 per cent.—resulted in a guilty verdict. There is something strange about that, given that the average percentage of convictions on a not guilty plea across the board in the Crown court is about 70 per cent. or a little higher. Why is the figure so low for rape? 
 I have already mentioned the difficulties facing juries. There is perhaps a tendency to acquit even in the face of overwhelming evidence of guilt of rape within partner-type relationships, or of rape involving people who previously had a relationship. One has only to consider the average sentence to realise that a jury takes on a huge responsibility when it produces a verdict on rape, particularly on a young man with no previous convictions. The average sentence nowadays is some six years on a guilty plea to rape, and seven years on a not guilty plea resulting in a conviction. 
 We must put ourselves in the position of a jury faced with a rape allegation against the kind of young man that I described and realise that its task is difficult for two reasons. First, and principally, it is difficult because the jury recognises the enormity of convicting a person with no previous convictions, who has had an acknowledged previous sexual relationship with the girl, when they know that the result after a contested case is likely to be a seven-year sentence and total ruin. I am afraid that that is a fact of life and something ought to be done about it. 
 Secondly, leaving aside my last point entirely, juries also have difficulty convicting because often, particularly in non-stranger rapes, there is no evidence beyond that of the man and the woman; evidentially the cases are difficult, particularly with regard to consent. That problem is made worse nowadays by the fact that young men and women—not just 17 to 19-year-olds, but people in their twenties and early thirties—engage in much more heavy binge drinking than was the case years ago. Many rapes arise from circumstances in which alcohol has had a huge influence on either or both parties. That presents an evidential difficulty because memories naturally become blurred, and sometimes what happened the night before is almost forgotten. 
 Why have I tabled the amendment? I believe that many juries would be more prepared to give a guilty verdict if they were of the view that a six or seven-year sentence for the defendant would not be automatic. I am not at any stage seeking to say that rape is other than a very serious offence. However, I hope that there are Committee members who will follow my argument, namely, that there is that reluctance.

Julie Morgan: Is the hon. Gentleman trying to say that rape is a less serious, more allowable crime when there is a previous or current sexual relationship?

Humfrey Malins: No, but the hon. Lady poses a fair question. Rape is rape and is terribly serious. I do not seek to say that one type is heinous and one is minor. Rape is a very bad crime. I simply say that most rapes that come before the courts occur in current relationships or in past relationships that have started again, and in many such cases juries are reluctant, for reasons that I hope I have explained, to bring in a guilty verdict because of the stringent sentence that follows automatically. That is the only issue and difficulty that I point out. I do not seek at any stage to try to categorise one type of rape as class A and another as class B—we all know that rape is a horrible crime. However, I wonder whether juries might be more inclined to bring in a guilty verdict if there were slightly more scope for variations in sentencing—I put it no higher than that.
 Far be it from me to say that rape does not deserve an immediate custodial sentence. In principle of course it does. However we in the legal profession know that there is very little movement in sentencing on rape cases; they almost always involve a substantial custodial sentence. I put that as a problem before the Committee. We all accept that rape is frightfully 
 serious and a horrible offence, and we have to accept that it is grossly under-reported and that the conviction rate for rapes within relationships are very low. That is the problem; I have no answer to it.

Stephen Hesford: If the hon. Gentleman's argument was left where it is, it would be difficult to have sympathy with it because, as my hon. Friend the Member for Cardiff, North (Julie Morgan) said, there would be categories of rape, and I am not sure that that would do. Some progress might be made through more imaginative sentencing on a guilty plea. An incentivising regime, marking the seriousness of the case whilst absolving the complainant from going through the court process, might address what the hon. Member for Woking (Mr. Malins) suggests is a potential difficulty.

Humfrey Malins: I thank the hon. Gentleman for a very constructive response. That may be a way forward. I hope that I have done my duty today by raising what I regard as a series of problems. The amendment that I tabled, which of course I will not press to the vote because it would be wrong to do so, was intended as a trigger to promote discussion about sentencing in rape cases, and the difficulties that juries have, particularly with the types of rape that I have talked about. I hope that there will be time in future for discussions on how to solve the real problem that I have identified. I have no answers, but many of us in this House know how to raise queries, so my job is done at least in part.

Sandra Gidley: I have some sympathy with the case study and the general thrust of the arguments advanced by the hon. Member for Woking. However, I have a problem reconciling those arguments with the amendment because it does not reflect them. Based on the sentiments that he has expressed, if the hon. Gentleman would like to revisit the matter on Third Reading I would probably be more sympathetic.
 My interpretation of amendment No. 22 is that there are occasions on which the situation could be as the hon. Gentleman describes and there is some doubt. However, there are also occasions where a relationship breaks up and one partner is very aggrieved, does not want the relationship to end and may not react in a totally rational way. On those occasions a rape may involve injury, force or significant physical harm to the woman. Surely on those occasions the sentence suggested in the amendment is not sufficient. I am glad that the amendment is not being put to the vote because I could not have supported it. There needs to be a greater link between what is proposed and the information given to back it up. 
Several hon. Members rose—

Roger Gale: Order. I have now had an opportunity to study carefully all the amendments that have been debated this morning, and I have taken the Clerk's advice. My understanding is that the clause has had full and thorough debate. I think that it is fair to say to the Committee that unless I am offered a compelling reason to think otherwise, I shall be minded not to allow a stand part debate. If any hon. Member feels that something has not been already
 discussed and wishes to raise it, it would be advisable to do so now.

Vera Baird: I, too, welcome you to the Chair, Mr. Gale. I will take the amendment in the spirit in which it is clearly intended—the hope to grope toward a solution. I always regret using the word ''grope'' in the context of sexual offences and I will not do so again. The proposal, which amounts to giving a shorter sentence for a rape that has occurred between people who have had a previous sexual relationship, has been considered by the Law Commission, the sex offences review and the Sentencing Advisory Panel during the past decade. The latter two organisations consulted on the proposal very extensively and it has been rejected. It has been considered comprehensively.
 I do not accept the model proposed by the hon. Member for Woking. He suggests that juries strain at the sinews to acquit defendants because they are sympathetic to young men in that position, because much depends on the facts. The figures that he quoted are compelling, but they are not as bad as those that I had heard for 2001. In the debate in the other place, Lord Falconer stated that there were 9,008 rapes in 2001 and that there were guilty findings in 5.8 per cent. of those cases. Some 1,267 such cases went to court, which is fewer than the hon. Gentleman's figures. I do not know which figures are right.

Humfrey Malins: I was quoting the previous year.

Vera Baird: And I was quoting 2001. I suppose that we must conclude that the situation is not getting any better.
 Both sets of figure make it clear that the biggest fallout occurs long before trial, because only a small percentage of cases come to court. There are, of course, many reasons for that, but I shall not repeat what the inspectors of constabulary and the inspector of the Crown Prosecution Service found in their report last Easter, namely that there were manifold failings in the way in which investigations are carried out, the support given to complainants and so on. It is a horrifying prospect to go to court, to talk in public about intimate things and to face cross-examination alleging that one wanted it all the time. A person in that position needs support, which the criminal justice system, of which my profession is part, has simply failed to provide. 
 The huge drop-out rate must be tackled, and a number of measures have been introduced to try to help. In truth, some of the measures to try to increase the number of cases that get to court will also increase the calibre of the prosecution. Such measures include better investigation, more support and more sexual assault referral centres, where there are expert doctors who can be quickly brought to a rape complainant and who can give supporting expert evidence that is far more compelling than that provided by a forensic medical examiner who has been called out to a police station in the middle of the night. Such measures will result not only in a higher number of people staying in the race until the end, but in a better quality of prosecution when cases come to court. We must examine such measures to improve the conviction rate. 
 A previous sexual relationship should not be acknowledged in a sentencing provision such as this—I appreciate that the hon. Member for Woking does not want fully to acknowledge it. A lower sentence for a rape by a former intimate would send the message that it is a lesser offence, and there is no way of getting round that. Some research suggests that rape by a former intimate is more of a blow to an individual than rape by a stranger. It has longer and more profound effects because the victim learns to distrust not only men, but herself for having engaged in the relationship in the first place.

Humfrey Malins: The hon. and learned Lady is right and I am wrong so far as the last part of her argument is concerned. I am not wrong in the sense that my aim is to highlight an issue, but my solution would not be appropriate. However, I am still striving for a solution, and anything that we can do to reach one would be appreciated.

Vera Baird: I appreciate that that is the spirit in which the amendment was drafted.
 Briefly, the amendment is hopelessly impractical. It refers to an offence after an ''acknowledged sexual relationship''. How does one define an acknowledged sexual relationship? If the definition were that the woman acknowledges it, it would leave her free to dictate the defendant's sentence. If she says, ''Yes, we had a sexual relationship'', the sentence would be down to five years. If she were to deny it, the sentence would remain high. What if there was an issue about whether there had been a sexual relationship? Sometimes people have five kids and it is obvious that they have had a sexual relationship. On other occasions, the man would allege that there has been a sexual relationship in order to put himself into this category.

Humfrey Malins: I did my best. [Laughter.]

Vera Baird: The real point is that we must explain to the public that real rape is that, as well as rape by a stranger in a back alley at night. As we discussed earlier, the definition of rape will have to move on.

Beverley Hughes: I completely accept that the amendment has been tabled with the best of intentions, in the belief that such a change could help to address the low rate conviction in rape cases that the hon. Member for Woking has outlined for us. That belief stems from the assumption that juries are more reluctant to convict in so-called acquaintance or date rape cases because the defendants do not fit the stereotype of the stranger rapist. His case study illustrated that very well. It is suggested that because juries know that a guilty verdict could result in a very lengthy period of imprisonment, they choose to acquit the defendant.
 The thinking behind the amendment is that introducing a lower penalty, or a lesser offence, for cases in which the two parties are, or have previously been, known to each other in an acknowledged sexual relationship would encourage juries to find more defendants guilty because they could be sure that any sentence of imprisonment would be comparatively 
 short. The argument is that the conviction rate would therefore increase. 
 However, despite the hon. Gentleman's good intentions, there are some dangerous flaws in his line of argument. As he said, the cases in which people know or have known each other are very difficult for the jury. Such cases are inherently difficult. Not only am I not convinced that going down the road that he suggests would achieve the outcome that he wants, but I think that it would potentially take the jury away from grappling with that inherent difficulty and the judgment that it has to make in any individual case. 
 The statutory provisions that the Bill introduces on consent as a whole are designed to help juries to reach fair and just decisions in such cases. The first aspect of the hon. Gentleman's argument that concerns me is the suggestion that juries might be more likely to convict someone if there was a lower penalty, because—I cannot draw any other conclusion from his line of argument—they would apply a lower standard of proof when dealing with these apparently less serious offences. In other words, they might say, ''We are not actually sure who is telling the truth here. These people have known each other and the complainant is saying that she has been raped. We are not quite sure what the situation is, but he'll only get up to five years, so we'll go with it.'' 
 Clearly, whether the complainant and defendant know each other, whether they have known each other, or whether they never knew each other at all, the jury must still apply the same standard of proof as in a case of stranger rape. It must be satisfied beyond reasonable doubt in cases in which people do not know each other and in those in which they do. I do not think that we can take that problem away from juries. The provisions in the Bill, including the reasonableness test, try to redress the current imbalance, which the hon. Gentleman acknowledged. However, it is inherent in the cases in which people know each other that there is a difficult decision to be made. That is one of the main reasons why I counsel against going down the route for which he argues. 
 A further reason relates to some of the statistics to which the hon. Gentleman referred, not so much on conviction rates as on incidence. He acknowledged that in the British crime survey—which people accept is a valid account of the incidence of different kinds of crime—only about 8 per cent. of people who say that they had been raped say that they were raped by someone who was not a current partner or whom they had never known. Therefore, if we accepted the amendment, we would be instituting a lesser offence for the vast majority of incidents affecting people who complain that they have been raped. 
 The amendment raises a matter of serious principle. It implies, as my hon. and learned Friend the Member for Redcar (Vera Baird) has mentioned, that being raped by somebody whom one knows or whom one has known in an acknowledged sexual relationship is less serious than being raped by a stranger or casual 
 acquaintance. Victim testimony—our own thinking might help us to understand—is that that simply is not true. Rapes can be different but equally serious. Being raped by somebody whom one knows or whom one has known intimately can be equally violent and traumatic. Not only does such a rape violate a person physically, but the trust, the relationship, and the judgments that have been made about the other person are shattered. Often there are also practical difficulties which do not arise with a stranger, such as avoiding future contact with that person in the course of one's daily life. 
 The fact that the parties are known to each other cannot automatically mean that an offence is of a less serious nature. I hope that the hon. Member for Woking will accept the points that I have put to him. We agree that the decisions are difficult, and we hope that the Bill will help juries to grapple with them slightly more easily and redress the balance. A route that implies that, if one is raped by somebody one knows or has known, it is not as serious, is wrong. None the less, I welcome the opportunity that the hon. Gentleman has given us to have the debate and to put our reasons on the record.

Humfrey Malins: I welcome what the Minister and the hon. and learned Member for Redcar have said. We have had a useful discussion. I do not think that the Minister or the hon. and learned Lady think that I take a view about different classes of rape. I have already made my views on the severity of the crime clear. I am glad to have identified an issue—I think that we all understand that it is an issue—and to have heard a compelling and helpful response. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 1 ordered to stand part of the Bill.

Clause 3 - Assault by penetration

Dominic Grieve: I beg to move amendment No. 39, in
clause 3, page 2, line 6, leave out paragraph (b).
 Clause 3 raises a potential difficulty, which is why I drafted amendment No. 39 for the consideration of the Committee. The clause covers assault by penetration and is linked, in terms of gravity, to clause 4, which relates to sexual assault, which is, effectively, touching. Clause 3, however, is very specific. It relates to someone intentionally penetrating 
''the vagina or anus of another person . . . with a part of his body or anything else''—
 an object. The clause goes on to state that an offence is committed if ''the penetration is sexual'', B ''does not consent'' to it and 
''A does not reasonably believe that B consents.''
 It goes on to deal with reasonableness, belief and the presumptions. 
 My concern is that, when one is dealing with a sexual assault by touching, it is clearly highly relevant whether there is a sexual motive for the action. It may be innocent touching, as opposed to, to use the words 
 of the hon. and learned Member for Redcar, a grope in a public place. However, I was a little puzzled as to why, when dealing with assault by penetration, it should be necessary for there to be a sexual element to the offence at all. After all, if someone carries out such an assault without the consent of the person concerned, that is a serious matter. It may constitute in some circumstances an offence of actual bodily harm or grievous bodily harm, but there is clearly an intention in the Bill to highlight and to deal with it as a specific offence. Why is there the need to say, in such cases, that the penetration has to be sexual? 
 Under clause 79, the definitions clause, we will be asking a jury to decide whether a reasonable person would consider whether the penetration was sexual. Under that clause, 
''a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations.''
 I understand exactly why that question has to be asked for clause 4, but why does it have to be asked at all for clause 3? Surely the real nub of clause 3 is that the activity takes place without, to use those old phrases, lawful authority or a reasonable excuse. If that is the case, why are we including the requirement that penetration should be considered to be sexual? 
 I appreciate that in the vast majority of cases that may appear to be an exercise in semantics, but seeing as we wish to show our absolute abhorrence at such activities taking place without consent, outside of medical necessity or, possibly, a lawful search—I have read the notes and appreciate the points that need to be covered—why are we requiring the jury even to consider the question at all? If we said, ''Members of the jury, you might conclude that the reasons behind this extraordinary assault had no sexual element to them at all but were mere violence'', as I read it, that jury could be faced with the bizarre circumstance of having to acquit for the offence. I therefore ask whether that definition should be in subsection (1)(b). 
 Under clause stand part we shall come to another point for which I have not tabled an amendment, but to which I shall return. The matter that I have raised seems to be small, but I am seeking to improve the legislation, not to put a spanner in the works in some way. Really, the motive, and motivation, of someone who thrusts an object into another person's anus or vagina seems to be entirely irrelevant if that is an unlawful act because there is not a proper reason—an excuse or a lawful authority—for doing it. In those circumstances, why is there the necessity of the jury being satisfied of a sexual motive? Of all the imponderables in life, one of the greatest is reading someone's mind or actions. That is not necessarily easy. I think that we are here giving the jury a hurdle that, in this context, is completely unnecessary.

Beverley Hughes: I have some sympathy with the arguments that the hon. Gentleman has advanced. I asked many of the same questions when considering the reasons why the clause is worded as it is. The answer is partly technical. This Bill deals with sexual offences and we must ensure that the offences that we are discussing and legislating for come appropriately within the Bill's scope. That point is important,
 although it is technical and does not wholly address the other points that the hon. Gentleman made, and with which I shall try to deal.
 The amendment—I understand the supporting arguments—would bring all forms of non-consensual penetration within the scope of the offence. It is very difficult to imagine an offence where somebody's anus or vagina is penetrated with an object not being sexual. In discussions with officials, I was reassured that the guidance issued to the Crown Prosecution Service and the way in which the Crown Prosecution Service would apply the charges will ensure that all offences in which there is any question of sexual intent will come within the scope of this legislation. 
 We must go to the bounds of what is possible in our discussions, and it is conceivable that there might be a very unusual incident in which, for example, a doctor who had to examine an unconscious person digitally as a matter of urgency would become liable for the offence if the legislation were drafted in the way in which the hon. Gentleman has suggested.

Dominic Grieve: I accept that my amendment might have been better if, having put in a provision to delete the paragraph, I had put in something else. That is why I raised ''lawful authority'' or ''reasonable excuse''. When we consider similar wording in subsequent clauses, we will see that I have done so, and the Minister can respond to that. I accept that it would be necessary to put in something else. The sexual element troubles me. I wonder whether it is necessary to require a jury to pose itself that question.
Beverley Hughes rose—

Stephen Hesford: Will my hon. Friend give way?

Beverley Hughes: Certainly.

Stephen Hesford: The sexual element is important in determining the gravity of the offence within the range of the Bill and the penalty that will be introduced. I would like briefly to suggest a case study. If there were a question whether a young person aged between 10 and 16 had any idea that what they were doing was a sexual activity, it would be a significant element in relation to the victim. It may be an assault—it may be a grave assault—but it should or could be looked at differently. So, the sexual nature is important.

Beverley Hughes: I agree with my hon. Friend but the argument being advanced is not that we should not consider the sexual nature. If I understand the points made by Opposition Members, their argument arises from a concern that it might be possible to propose a defence that a particular action of that kind was not sexual, did not therefore come within the scope of the Bill, and may become liable to a charge under other, non-sexual, legislation, which might attract a lower penalty.
 On that point, I want to reassure my hon. Friend. Where a defendant penetrates a vagina or anus with a bottle, for example, it is very likely the court will find that to have been a sexual act—even in the unlikely event that the defence might be based on the fact that the defendant intended only to cause serious harm and that they had no sexual purpose. That is a judgment that the court will make. 
 The concern of the hon. Member for Beaconsfield (Mr. Grieve) may be that, in the Bill, the offence of assault by penetration carries a maximum life penalty, whereas some other offences of assault—for instance, assault occasioning actual bodily harm—carry maximum penalties of five years. The maximum penalty for the offence of common assault is six months imprisonment. I understand the concern that, if a situation arose where the extent to which a particular incident was not sexual was successfully argued, it would attract one of the charges with a much lower penalty. I remind the hon. Gentleman that the offence of grievous bodily harm with intent, which could be charged in relation to a serious non-sexual penetrative offence—if such a set of circumstances existed—is also life imprisonment. There is a maximum penalty for a non-sexual offence that might involve penetration comparable to that for the offence laid out in the Bill.

Chris Bryant: Might there not also be circumstances in which a doctor who regularly carries out digital examinations gained consent to a digital anal or vaginal examination from the patient, who had not consented to an examination where the doctor was clearly sexually excited? In such circumstances, the person would feel themselves to have been more profoundly abused, and the law should take that into consideration.

Beverley Hughes: Certainly—exactly so. I have no difficulty in agreeing with my hon. Friend. Based on the circumstances of the case, that person would be charged under the legislation.
 Any penetrative offences that were not judged to be sexual—and I qualify that statement by saying that it is difficult to conceive what they might be, although the example of my hon. Friend the Member for Wirral, West (Stephen Hesford) in relation to young people might be an example in point—are offences against the person and in such cases there is provision for charges that carry the same maximum penalty of life imprisonment as those in the Bill. 
 I understand the concern that is the mainspring of the amendment of the hon. Member for Beaconsfield, but between the Bill and legislation that already exists there is provision in the case of penetrative offences that are sexual—and most will be—or rare, non-sexual offences for charges to be laid that attract the same penalty. There is no need for the amendment and I ask him to withdraw it.

Dominic Grieve: I reassure the Minister that I do not intend to press the amendment to the vote. I raised the matter because I think that it is serious. Although the Minister has answered my queries in part, I confess that I remain slightly unpersuaded on the issue. There were some interesting contributions, and the hon. Member for Wirral, West raised an interesting point.
 It is the case that there may be circumstances where someone has an apparent lawful reason to carry out penetration, but is doing it for a wholly unnecessary purpose to get sexual gratification. Of course it is 
 possible for someone to get sexual gratification from their professional activities while fulfilling a lawful purpose. That is something against which no legislation is going to be possible. 
 However, the problem could be dealt with by removing the word ''sexual'' and putting in the words ''lawful authority'' or ''reasonable excuse''. There is a number of words in the jargon of legislation that I can think of which make it quite clear that carrying out an act such as an intimate strip search would be permissible, if one had lawful authority. A reasonable excuse may be, for instance, if one were dealing with an unconscious patient and one considered that an examination had to be carried out forthwith. 
 It is quite possible to draft something without including the sexual element. My feeling is that the word has crept in partly because it is the Sexual Offences Bill, and partly because it is a generic description that applies to a number of different offences—in some cases absolutely properly. In the example I gave earlier in relation to clause 4, it is vital that the sexual element is a factor that should be determined by the jury. 
 I question the necessity of the term in clause 3. It seems that we are seeking to highlight in this offence Parliament's abhorrence and prohibition of the penetration of a person's anus or vagina without consent with an object or part of a body. The question of motive from the victim's point of view is unlikely to make very much difference, although I accept that there may be factors that can be taken into account in sentencing. 
 I do not wish to turn a serious topic into something comic, but I remember watching the ''Carry On'' films as a boy and I seem to remember that ''Carry On Nurse'' ends with a penetration by a daffodil—that would be unlikely to merit life imprisonment, even though it would clearly be an offence under clause 3. The courts would have to make a judgment. The reason why we have the penalty of life imprisonment is that we regard penetration as a potentially serious matter, not that such a case is of necessity going to attract life imprisonment or, for that matter, many years in prison. It will all depend on the facts. 
 Is it necessary for the jury to be satisfied about a sexual element? If it is, we will find that every barrister and prosecuting counsel in slightly odd cases will put down two counts on the indictment: one will be assault by penetration, resulting in life imprisonment; and the other, unless there are serious injuries, will be ABH. Why make a rod with which to beat our own back, when we are trying to spell out clearly that something is not only prohibited but regarded as a potentially serious offence?

Chris Bryant: I am, as a Welsh MP, rather hesitant to stand up on the issue of daffodils.
 The hon. Gentleman said that people might draw sexual gratification from any line of work, and that we cannot pass a law to prevent that. However, those people who for their work regularly have to insert things into other people's bodies should be presumed 
 to have a different set of criteria guaranteeing their probity.

Dominic Grieve: I entirely agree. The point that I was trying to make is that something might be lawfully done, but in that particular context still give somebody some sexual gratification. We can only condemn those who do things that are unnecessary, wrong or unlawful and, as I said earlier, without lawful authority or reasonable excuse. I want to prevent a jury from having to answer a question that might, in the context of what they are being asked to deal with, be unnecessary.

Beverley Hughes: I realise that the hon. Gentleman is trying to bring his remarks to an end, so I shall briefly intercede. I am perfectly happy to go back and to make absolutely sure with officials that we need do nothing further on the clause. I shall bring any information back to the Committee.

Dominic Grieve: I am most grateful to the Minister. That is as much as I could possibly have asked for. It may well turn out that there are good, cogent reasons why we should stick to this formula. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Dominic Grieve: There was one other matter that was raised by Liberty but on which I did not draft an amendment. The organisation made the valid point that there appears to be a potential duplication between assault by penetration and rape. As worded, the fact that assault by penetration does not specifically exclude penetration with the penis might mean that it could be argued that a person who commits rape is also committing assault by penetration. Is that what the Government intended? If the Government wanted to spell it out clearly, it would be necessary to reword clause 3(1), which says that person A commits an offence if
''he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else''.

Beverley Hughes: Where it is clear that the penis is the object with which somebody has been penetrated, a person will always be charged with rape. The two clauses were drafted as they were—clause 3 in particular—because there may be circumstances where it is not clear with what the victim was penetrated. If somebody is blindfolded, for example, there may be a reasonable assumption or a view about what happened, but it will not be clear. It is therefore important to retain the wording of the clauses to allow for that eventuality.
 Hon. Members will know that non-consensual penetration of the vagina or anus with anything other than the penis is currently charged as indecent assault, which carries a maximum penalty of 10 years imprisonment. From the important, although fairly brief, discussion of the clause it is clear that all Committee members regard forceful penetration with another body part or object as extremely serious offending behaviour, which can inflict as much, if not more, pain and physical damage on a victim as penile 
 penetration and is likely to result in similar psychological trauma. 
 Clearly, the law must recognise that penetrative offences are serious. That is why we created the new offence of sexual assault by penetration. We believe that the maximum penalty for that offence should be life imprisonment—the same as for rape. The new offence will provide better redress for those who are subjected to such appalling offending behaviour. I hope that it will enable the correct targeting of more offending behaviour against children and adults and that it will be underpinned by a maximum sentence that properly reflects the gravity of the offence that is committed. 
 Question put and agreed to. 
 Clause 3 ordered to stand part of the Bill. 
 Clauses 4 and 5 ordered to stand part of the Bill.

Clause 76 - Presumptions about the absence of

Beverley Hughes: I beg to move amendment No. 41, in
clause 76, page 36, line 36, at end insert— 
 '( ) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 33, in 
clause 76, page 36, line 36, at end insert— 
 '(f) any person was, at the time of the relevant act or immediately before it began making threats of any description against the complainant or against another person'.

Beverley Hughes: I have already outlined the policy justifications for the rebuttal presumptions in the clause in my response to amendment No. 37, so I will not delay our progress by rehearsing those arguments. We aim to place in statute the circumstances in which sexual activity will not be condoned, and in relation to which the jury is entitled to presume that the complainant did not consent to the sexual activity and the defendant did not reasonably believe that the complainant consented to it. The judge will direct the jury to find the defendant guilty of a non-consensual offence where he does not raise sufficient evidence to rebut that presumption and if it is satisfied beyond reasonable doubt that the sex took place, that the circumstances existed and that the defendant knew that they existed.
 We must be sure, before placing such an evidential burden on the defendant, that the circumstances in which the relevant act took place are such that they give rise to serious doubts about the ability of the complainant to exercise free choice. In short, the list of circumstances in the clause must include only those where it is reasonable to conclude that the complainant would not have consented and the defendant would not have had a reasonable belief in consent. 
 After a suggestion made by Lord Lucas during debates on the Bill in another place, we decided, by means of amendment No. 41, to add one more situation to the list of circumstances where a rebuttable presumption should arise. That is as follows: where a person engages in sexual activity with somebody knowing that he—the defendant—or a third person has administered a substance to the victim, or caused the victim to take a substance without consent, and, having regard to when the substance was taken, it was capable of enabling the victim to be overpowered at the time of the relevant act. The amendment complements the offence in clause 62, entitled ''Administering a substance with intent''. That covers a person who administers drugs or another substance to a victim without their consent with the intention of overpowering them, so that he or another person can engage in sexual activity involving that victim. The offence is complete once the substance is administered, before the intended sexual activity takes place. 
 That addition to the rebuttable presumptions list covers situations in which sexual activity has actually taken place in such circumstances. We are talking about what is referred to as drug rape. In cases of drug-assisted sexual activity, in which the victim has been drugged without their knowledge or consent, we believe that it is fair for the jury to presume that the complainant did not consent and that the defendant could not reasonably believe that she had consented. 
 The Government are aware that the incidence of drug-assisted rape is a cause for public concern; indeed, last night police officers argued for the inclusion of the provision. We are committed to taking whatever measures we can to strengthen the law and offer increased protection to potential victims. Adding drug rape to the list of rebuttable assumptions makes it clear in statute that such behaviour will not be tolerated. I hope that hon. Members agree and will see fit to accept the Government amendment. 
 Amendment No. 33 would add to the list of circumstances the case of the defendant or anyone else making any threat against the complainant or any other person either at the time of the alleged offence or immediately before it. I understand that the amendment is intended to cover any type of threat, such as threatened redundancy, burglary, or even future violence. I appreciate that the consultation document, ''Setting the Boundaries'', originally proposed fear of serious detriment as a circumstance that should give rise to a presumption about lack of consent. However, by the end of the consultation process, we decided to exclude fear of serious detriment from the list in clause 76(2) simply because the term is too imprecise and would create uncertainty in law. That is my basic problem with the amendment. 
 What constitutes a threat significant enough to lead to submission will vary between individuals enormously, according to their circumstances and the circumstances in which the threat is delivered. For example, the threat of loss of one's job could be 
 extremely serious for someone who is unskilled and dependent on a stable income to pay for urgent medical treatment or anything else that is critical, but not so serious for someone who could expect to find alternative employment readily. 
 The amendment might also cover threats that could take place at any time in future and which it might be within the complainant's power to prevent, either through their efforts alone, or—in the case of threatened violence—by going to the police. In addition, the amendment covers threats against any other person and potentially takes the scope of the offence outside the circumstances that could reasonably be considered to be of particular relevance to the victim. The amendment would cover a threat of any description made by anyone against another person. It is so wide that we simply cannot accept it into the list in subsection (2). 
 I certainly do not trivialise the concern that prompted the amendment, and I recognise that threats, whether they refer to causing harm or detriment to the victim or a member of their family, should always be taken seriously by the jury. They are important factors in determining whether the complainant consented, and whether the defendant believed in consent. However, as I have already made clear, we must ensure that the rebuttable presumptions in clause 76 are those on which we feel certain it is fair to conclude that consent was not present unless the defendant can raise sufficient evidence to the contrary. 
 To justify inclusion in the clause, any threat must be both realistic and immediate. It must involve the threat of immediate violence: for example, where an intruder holds a mother in one room and forces her to submit to intercourse by threatening that otherwise his partner will kill her child in another room. 
 Threats of an uncertain nature, made by the defendant or any other person, against the victim or anybody else at some unspecified time in the future, are too distant, too uncertain and unspecific to justify inclusion in the rebuttable presumptions list. I shall be very interested to hear Opposition Members' arguments in support of the amendment.

Vera Baird: My hon. Friend has emphasised that Government amendment No. 41 is intended to cover drug rape. Does she agree that it would also cover a rape in which the victim is given drink without her consent, such as the case of someone slipping, say, vodka or another spirit into the bottom of the victim's glass when she is already well on the way to being drunk, to tip her over the edge? The amendment does not mention a prohibited substance; it just says any substance, so presumably it would cover alcohol as well.

Beverley Hughes: It would cover any substance administered without the consent of the individual, so that would include alcohol.

Humfrey Malins: The problem with a list, and whether it is to be added to, has been illustrated by the fact that the Bill left the House of Lords with a number of rebuttable presumptions set out in clause 76 and that a further one has since been added. That raises the question whether the list is intended to be exhaustive.
 It is always dangerous to leave a list of circumstances when there is a possibility that something else could be added. Plainly the list, in the very good Bill that left their lordships' House, was not exhaustive because in the last hours or days the Government have thought of yet another item to add to it.
 The Minister will have to accept that sometimes there are difficulties with lists. The chairman of the Criminal Bar Association said to the Home Affairs Committee that the list was legislative overkill; the question was whether such a list was necessary. He referred to what is essential in a rape case: a crystal-clear, easily understood summing-up to a jury rather than something that goes through a series of rebuttable presumptions. Most of the juries that I have been involved with would have difficulty in understanding the phrase ''a rebuttable presumption''. It would be very difficult properly to address a jury on such matters. Certainly Peter Rook, before the Home Affairs Committee, had his doubts about such a list.

Vera Baird: I want to take the issue further. I am not sure how the provisions would operate. The hon. Gentleman has just referred to the need for juries to understand the concept of a rebuttable presumption. Would that be the position or would the judge not have to decide in the first place whether the presumption has been rebutted? In that case, the jury would never have to consider the matter because by the time it gets to them, the burden of proof would be in the ordinary direction.

Humfrey Malins: I think, on reflection, that the hon. and learned Lady is right; it would be a judicial decision during the course of the trial and the jury might or might not be sent out when there is legal argument on such a point. On the basis of keeping everything in life simple, the hon. and learned Lady may agree with me that if we can keep matters simple, especially the process of summing up to juries, that would be a good thing.
 The Minister dealt with my arguments about my amendment before I made them. That was kind of her. Not having heard them, she did so very well. Indeed, she probably dealt with my arguments better than she would have done had she heard them. There can be situations in which there is not just force, but threats of force. For example, let us consider serious economic threats between a divorced husband and wife, such as, ''I won't pay the school fees—unless'' or, ''I won't pay your mortgage or your rent unless you do what I want you to do.'' In many ways, such threats are worse than a punch in the teeth. Not only have they an impact on the person who is threatened with the economic problem, but they can have a nasty impact on the loved ones—the children—of the person who is being threatened. 
 My amendment is a further example of when such a presumption might exist, which would fit in reasonably neatly with the Bill. I drafted the amendment to illustrate that sometimes lists are not exhaustive. It was not for any other purpose. Indeed, when the list came to us from the other place, it could not have been complete given that the Government have found another presumption to add to the existing lot that are before us. I was uncertain until towards the end of 
 the debate whether alcohol was included in the Government's amendment because there was some discussion in the Home Affairs Committee about alcohol and getting a person drunk. The Minister has pointed out that such matters would apply to alcohol when laced drinks were involved, which is a more heinous action than simply giving someone a lot of drink. 
 I shall say no more about the matter. I thank the Minister for her response. We never wanted to press the amendment to a Division. I drafted it originally on the basis that lists are not always exhaustive. There may have been reasons to add to the list that emerged from the House of Lords. Indeed, I was absolutely right in that respect. It is just that the Government, when adding to the list, did not add what I said, but what they said. That proved that I was entirely right in principle, but slightly wrong in detail.

Annette Brooke: My hon. Friend the Member for Romsey (Sandra Gidley) and I wish to place on record the fact that we strongly support Government amendment No. 41. There was an omission, but so many changes in the House of Lords have brought us to the excellent position that we have reached today.

Vera Baird: I wish to ask a question about clause 76(2)(e) and canvass with the Minister why it does not relate not only to the complainant's physical disability, but a mental disability.

Roger Gale: Order. The hon. and learned Lady is going down the path of a stand part debate, too. I am willing to allow that on the understanding that the Committee realises that it cannot have both debates.

Vera Baird: I appreciate that, Mr. Gale. I accept that my question does not relate to the debate on the amendment. You are right. Shall I wait until later to say my two words?

Roger Gale: It is entirely up to the hon. and learned Lady. As I said, I am relaxed about such matters on the understanding that we shall not have a clause stand part debate. I am willing to allow her to pursue her question if she wishes to do so.

Vera Baird: I simply wish to ask the Minister why mental disability was not considered to be a circumstance and did not find its way its way into clause 76(2)(e). I wish to raise again the issue referred to by the hon. Member for Woking. I had not digested the matter in quite the way that he put it. We are talking about the omission of a threat of future action. One could go to the police about a threat of future violence and that might be a good reason for not including it in the conditions. One should go to the police about such a threat. A threat of future non-payment of the mortgage would not be a criminal offence, however, and realistically, there would not be anything that a woman could do about it in the sense of having recourse to the authorities. I wonder whether there is a gap in the Bill.

Roger Gale: Having extended some freedom to the hon. and learned Member for Redcar, I feel
 obliged to extend it to any other Member who wishes to comment on the clause.

Beverley Hughes: I apologise to the hon. Member for Woking. I just thought that it might be helpful—notwithstanding the possibility of his having many cogent comments to make that I had not thought of—to give him a steer on my attitude to his amendment. I hope that he does not think that I took his amendment lightly in making some remarks at the start.
 I take the hon. Gentleman's point about the danger of lists. He knows that the original proposal for a limited statutory list of circumstances in which it would be conclusively presumed—that was the view at that stage—that the complainant did not consent was contained in ''Setting the Boundaries'' and opened to consultation. As a result of the strong views expressed during that consultation, it was felt that it was right to have a list that made a statement and sent a message to courts and society at large about the circumstances in which we as a society will not condone sexual activity, and about the bottom-line assumptions that I referred to today when we were debating the principles. 
 The hon. Gentleman outlined the danger that, once there is a list, there are questions about what should be on it and how extensive it should be. Having decided in principle that it was right to have some presumptions in legislation, we have taken the approach that the list should be very limited and, building on the results of the consultation, that we should have a list of rebuttable presumptions so that, even in those circumstances, if the defendant could adduce sufficient evidence to convince the judge that there was an issue about consent, there would be a possibility of his having that issue incorporated into the trial. 
 We know that putting presumptions of any kind into legislation is a serious matter. We have tried to strike a balance when using the presumptions to make that important statement—the consensus was that, on balance, that was a good thing to do—and when framing the conclusive and rebuttable presumptions. The rebuttable presumptions enable the defendant to make a case or try to make a case. We have tried to strike a balance between making the statement and the interests of complainants and defendants. Even though we have presumptions, the concern is obviously framing those provisions in a way that does not compromise the principle that somebody is innocent until proven guilty. 
 On the question asked by my hon. and learned Friend the Member for Redcar about mental inability, the main point about subsection (2)(e) is that the complainant has a physical disability as a result of which she would not have been able, at the time of the relevant act, to communicate to the defendant whether she consented. For other kinds of disability, the court must take into account as a matter of judgment whether that disability impeded communication; but where someone is physically unable to speak, we argue that unless the defendant can adduce evidence to the contrary, it will be presumed that that person could not have consented because of their literal inability to 
 communicate. Other disabilities are more open to interpretation and judgment. 
 As you are not allowing a clause stand part debate, Mr. Gale, I shall sum up briefly. We have thoroughly debated, now and previously, the principles and the detail of clause 76. I commend the clause as we propose to amend it to the Committee. 
 Amendment agreed to. 
 Clause 76, as amended, ordered to stand part of the Bill.

Clause 77 - Conclusive presumptions about consent

Dominic Grieve: I beg to move amendment No. 38, in
clause 77, page 37, line 6, leave out paragraph (b).
 I had the opportunity of discussing the amendment briefly with the Solicitor-General before we broke for lunch. When I first looked at clause 77 it struck me as being perfectly straightforward, correct and, if I may use the word, innocuous in its scope. The Solicitor-General confirmed to me before lunch that the conclusive presumptions about consent incorporated in the clause have a long history. They are not a recent invention, but have been around for some time, especially where the defendant 
''intentionally deceived the complainant as to the nature or purpose of the relevant act'',
 and where 
''the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.''
 My first reaction was that that was all completely in order. However, when I came to think about it last night, I began to wonder whether it was correct for us to have the conclusive presumption in subsection 2(b), that 
''the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.''
 In most cases, I would consider that it is correct to have that provision. If someone goes into a bedroom and pretends to be a woman's husband, thereby having sexual intercourse with her when she certainly had no intention of having sexual intercourse with that person, I can easily see that a conclusive presumption makes sense. However, as I explained before lunch, I wonder whether—it may be that I am becoming too fanciful—changes in social mores, quite apart from anything else, could easily bring about circumstances in which someone might believe that they had the consent of the complainant to deceive her as to the identity of the person with whom she was having sexual intercourse. 
 I gave the following example to the Solicitor-General. It is not something of which I approve, but a group of young people might decide to have a weekend in a country house for what I would describe as an orgy—I think that the Solicitor-General informally described such people as swingers. In the course of that event, it is agreed that there will be sexual intercourse between all the parties in the house. There is general consent by the parties to that 
 happening, which can of course be withdrawn. However, because the people are going around impersonating each other, a situation could occur—we have to take account of the possibility of misleading cases, as I long ago discovered—where a person misleads the complainant by impersonating another person in the belief that they had the permission of the complainant so to mislead them. 
 All I want to know, which was the question that I explained before lunch, is whether in those circumstances there would be, as I would think that there would, a conclusive presumption of guilt—which is what it amounts to—and of rape having taken place. That raises the question whether there should be a conclusive presumption or a rebuttable presumption. That is the issue. 
 I apologise if the point appears totally fanciful, but unless the Committee is prepared to examine the fanciful possibilities that exist in the modern world, we will probably not do this important legislation justice. I await what the Solicitor-General has to say with interest, if not with bated breath.

Harriet Harman: I thank the hon. Gentleman for giving me notice of this scenario before lunch. In introducing the amendment, he said that he had begun by feeling perfectly comfortable about paragraph (b), but had grown more and more anxious and now wants it to be struck out. I started off by feeling very uncomfortable about it, but I have felt more comfortable as I have looked into it.
 As my hon. Friend the Minister of State said, we all worry about rebuttable presumptions because of the fear that they interfere with the principle that one is innocent until proved guilty. A rebuttable presumption may let the prison door clang shut, but at least the defendant will have had the chance to rebut it. We should be very concerned about conclusive presumptions because they cannot be rebutted. We know that rape and other sexual offences are taken more seriously by the courts than they used to be. Indeed, the starting point in Milberry for a rape with no aggravating features is five years imprisonment. 
 We are right to examine carefully the clauses that bring in conclusive presumptions. The framework of the Bill, which is admirable in all other respects, makes the conclusive presumption look worse than it is. The conclusive presumption does not require the prosecution to prove the same thing twice, which the prosecution would have to do if the conclusive presumption were not included. 
 I ask the hon. Gentleman carefully to examine the connectedness between ''intentionally'', ''induced'' and ''impersonating''. If all three things are shown, the woman in the witness box should not have to show that she did not consent because there would have been an intentional induction by impersonation. The measure is based on the old offence of obtaining sexual intercourse by fraud. If one considers the provision as such a separate offence, the absence of consent in fraud cases has been proved, and one feels comfortable about it. The structure of the Bill exists for very good 
 reasons, but it looks a bit odd at this point, which concerns people. 
 Let me remind the hon. Gentleman of the background. The statutory origin is 1956—the case of Barrow dates back even further, to 1868, but I shall not go into it. Section (1)(3) of the Sexual Offences Act 1956 provides that a man commits a rape if he induces a married woman to have sexual intercourse with him by impersonating her husband. That is more or less what we have in the Bill, in the form of a conclusive presumption. 
 In the Bill, we have extended the offence to cover relationships outside marriage, making it gender neutral, and extended it to cover all types of sexual activity. In the past it applied only to rape involving sexual intercourse, and not to indecent assault. We have modernised that old-fashioned, long-standing offence. 
 We have done that through clause 77(2)(b), which provides for the conclusive presumption that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act if it is proved. The prosecution has to prove that the defendant ''intentionally induced'' the complainant to consent to the relevant act 
''by impersonating a person known personally to the complainant.''
 In relation to your party of swingers, where people are all dressing up and pretending—

Roger Gale: Order. It is certainly not my party of swingers.

Harriet Harman: I beg your pardon, Mr. Gale.

Roger Gale: Friends on both sides of the House would regard the oldest swinger in town as being something completely different.

Harriet Harman: I apologise, Mr. Gale. In the example that the hon. Member for Beaconsfield gave, there is impersonation, but it is just what is happening—the impersonation is not taking place intentionally to induce. The prosecution would not be able to prove that in order to reach the next point. We do not need to show that there was no consent in addition to that because we have the conclusive presumption. We do not want the prosecution to have to double back over territory it has effectively gone past. It would not get past that territory in the case of the hon. Gentleman's example.
 Amendment No. 38 would remove clause 77(2)(b) and reduce the protection of victims by offering them less protection than they have under existing law. We all remember two particular sets of circumstances. In one case, a music teacher deceived a pupil by saying that if she did this it would make her singing voice better. That was deception concerning the nature of the act of sexual intercourse. The second type of deception concerns who the person is. We want to keep that in the Bill, and I ask the hon. Gentleman not to press his amendment to a vote. 
 When the facts can be proved in such circumstances, we surely must agree that the 
 complainant did not give their consent to intercourse or to engaging in sexual activity with a person if they were tricked by impersonation because they were not making an informed choice. Nor can there be doubt that any claim by the defendant to believe in consent would be fatuous because the elements of the offence are the deception that they practised by virtue of impersonation, which the prosecution would be required to prove. It is hard to see why the complainant should thereafter be subjected to cross-examination, such as, ''This person was impersonating your husband, but even if you hadn't realised that this person was not your husband, you'd have wanted it with him anyway.'' That is the danger. One would end up with the allegation that the person was consenting to sex even though a person was impersonating their husband. 
 Given the rebuttable presumptions in clause 76, there is significant merit in sending a clear signal in statute about the circumstances in which sexual activity will not be tolerated and where the perpetrator can expect to be found guilty of a non-consensual offence. We have to remember the context when we are thinking of getting rid of existing protections. At the same time, we have to keep in mind the innocent person who might be found guilty under badly framed law. We do not want that to happen. 
 We also have to remember the context mentioned by my hon. and learned Friend the Member for Redcar, which is that of all serious offences, rape is least likely, after reporting, to get to the point of prosecution and, after it gets to prosecution, is least likely to reach the point of conviction. We have to be careful about doing anything that takes away legal protection from the victim. We all recognise that, despite increasing efforts by the police, the prosecution and the courts to enable people to bring their case to court where there is an allegation of rape, it is in this area of offences that the justice gap, as it is called, is widest and public and victims' confidence is most tenuous. 
 With that in mind, I asked police and prosecutors whether they had had any such cases. Like the hon. Member for Beaconsfield I have tried to work out the sort of scenario in which one could imagine it necessary to keep such a conclusive presumption in the Bill. Bearing in mind the concerns that the hon. Gentleman has raised, why do we not just chuck it out? If we did not think that we needed the provision, why bother arguing against the amendment? 
 As other hon. Members have done, I commend Operation Sapphire on the presentation that it made available to Committee members last night. Operation Sapphire says that it has had two recent cases involving this kind of act and that it wants to keep the provision. It sees more scenarios than we could ever dream up, and it does not want to lose what it thinks might be a useful piece of legislation. 
 Whenever there is a rebuttable presumption, we should test it incredibly carefully; whenever there is a conclusive presumption, we should presume against it 
 until it has been proved to be necessary. I have travelled the same thought-process journey as the hon. Gentleman and I am confident in saying to him and to the Committee that we should keep paragraph (b).

Dominic Grieve: I am most grateful to the Solicitor-General for her comments. She has persuaded me. As this discussion has taken place, it has become apparent to me that in the rather odd circumstances that I put forward as a theoretical possibility the defendant would be able to rely on the fact that consent had existed all along and had not been induced by impersonation, so he would not fall foul of the conclusive presumption. I have nothing against conclusive presumptions in circumstances of this type, or against their history. Perhaps I was looking at the Bill too late at night, but it suddenly struck me that the conclusive presumption might have draconian and unintended consequences. I am grateful to the Solicitor-General for reassuring me on that and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 77 ordered to stand part of the Bill. 
 Clause 78 ordered to stand part of the Bill.

Clause 2 - Anonymity of defendant in rape etc. cases

Dominic Grieve: I beg to move amendment No. 23, in
clause 2, page 1, line 17, leave out from 'enjoy' to end of line 18 and insert 
 'a right to anonymity, from initial accusation to conviction, unless at any time between charge and conclusion of the trial a circuit judge directs otherwise.'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 24, in 
clause 2, page 1, line 17, leave out from 'enjoy' to end of line 18 and insert 
 'a right to anonymity until charged.'.
 New clause 1—Anonymity of suspects and defendants in certain cases— 
'(1) Where an allegation has been made that a person has committed an offence listed in Schedule 3 to the Sex Offenders Act 1997, no matter relating to that person shall be included in any publication if it is likely to lead members of the public to identify that person as the person who is alleged to have committed the offence, until and if that person is charged. 
 (2) If any matter is published or included in a relevant programme in contravention of subsection (1), the following persons, namely— 
 (a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical; 
 (b) in the case of any other publication, the person who publishes it; and 
 (c) in the case of matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper, 
 shall be guilty of an offence.'.

Dominic Grieve: We now come to a section of the Bill that we understand to be contentious. It is the Government's intention, as I understand it, to
 remove clause 2 and argue that it should not stand part of the Bill. There has been much discussion and debate—this seems to have been almost the principal topic of the debate foreshadowing this House's consideration of the Bill—on whether there should be anonymity for defendants in rape cases and what the scope and duration of that anonymity should be. Should it be simply for the duration of the charge or last throughout the trial? If there is such an intention, how should the legislation be drafted? The drafting is by no means free of complexity. The House of Lords—following Lord Ackner's suggestion, I believe—inserted clause 2 in what I acknowledge to be a somewhat simplified form. No doubt it was designed to alert the Government to their lordships' concern about the matter and to invite the Government to come up with proposals of their own.
 In considering the clause, we must go back to principles. Over the past few weeks, I have discussed some of the issues with Committee members, and I say at the outset that this is not a matter that I find at all easy. The basic principles I find very easy indeed: it is desirable that all aspects of the criminal justice system should take place publicly, which means that defendants and witnesses are publicly identified throughout the court process. As much of the court process as is possible should be open to public scrutiny, as that reassures the public that what they are seeing is prosecution, not persecution, and that things are taking place in a fair manner. 
 However, we know from example that it is not always possible or indeed desirable to try to achieve that. We know, for instance, that there might be cases involving state security where some of the evidence cannot be given in public, but it is nevertheless in the public interest that there should be a prosecution. Sometimes, the identity of witnesses needs to be protected because they are at great risk either in their work or of being attacked if their identity and place of residence is made known. 
 In rape cases, we have taken matters a stage further. It is widely acknowledged that the trauma of giving evidence in court is such that it is difficult to persuade victims or alleged victims of rape to come and give evidence about serious criminal offences. Therefore, notwithstanding the basic rule that I have just spelled out, it is in the public interest that such people should enjoy anonymity in almost all circumstances. I do not suppose that anybody on the Committee would want that principle reversed; it was introduced some time ago and it appears to be essential if this serious type of case is ever to get to court. 
 I shall move on to remarks about the position of defendants. I am aware from having read the House of Lords Hansard that some argue that, in view of the fact that complainants have anonymity in rape trials, it is only fair that the defendant should have anonymity in those trials. I do not agree with that, but I understand the force of the argument, and I suspect if one went outside the House and spoke to members of the public, one would meet people who argued that view forcefully. I do not take that view because I acknowledge, for the reasons that I gave a few minutes ago, that such equivalence cannot always be achieved. 
 We do not say that somebody who is tried under the Official Secrets Act must have anonymity simply because some of the witnesses in the trial who come forward to give evidence have anonymity. 
 That issue focuses my mind on the peculiar problems that rape allegations pose, which appear to fall into several categories. First and foremost, we know that rape allegations have the unique and unfortunate distinction of having an astonishingly low conviction rate—I can think of few other offences that come into that category, although there may be one other. All sorts of reasons can be adduced for that, and we have argued them. There are anxieties that it reflects the fact that many guilty people are getting off, and it is argued that the rules and tests of evidence should be changed—indeed, we are in part doing that in the Bill. As I have said, I am not sure that that will make a huge difference, but I hope that it makes a positive contribution to securing justice in rape trials. 
 Nevertheless, we must face the fact that the vast majority of people who have an allegation of rape brought against them are acquitted, as a result of societal changes in the nature of the allegations; as has been highlighted, rapes now overwhelmingly concern not a stranger but parties who are acquainted. Having been acquitted, they are entitled to all the benefits of that acquittal, including, if they do not have other convictions, being regarded as being of good character, and being able to get on with their life. 
 However, the reality is that many who have been acquitted have their life ruined by such allegations, and in a very few cases, it transpires that the allegations were made maliciously. We face a great problem. That highlights the question whether it would be in the public interest and the interests of justice in such circumstances for defendants in rape trials to have anonymity. In that case, we would have to ask for how long and in what circumstances that would be so, and what exceptions there might be. 
 It is worth remembering that there was a period of 12 or perhaps 11 years—I can never remember the precise dates on which legislation came on or off the statute book—when defendants in rape trials did enjoy anonymity. It overlapped only slightly with my period at the Bar, but certainly in my first few years—

Humfrey Malins: It was 1976 to 1988.

Dominic Grieve: That, indeed, is what I recollect. My only reason for not being specific was that I wondered whether the Act was on the statute book for some months before it was implemented.
 I remember seeing rape trials taking place in my early years at the Bar in the 1980s. I certainly was not conscious that there was a great impediment to justice in granting anonymity to rape defendants—until, of course, they were convicted, when, naturally, their anonymity disappeared. 
 It has been suggested that there may be cases in which anonymity seriously hampers police investigations, because it prevents an opportunity for other people to come forward, as they will not have heard that the defendant is standing trial. I accept that 
 that may sometimes happen. That is why I also always accepted that there must be exceptions to anonymity rules when the interests of justice require it. Another example is that of a defendant who does not surrender to bail and goes on the run. It is easy to see that in those circumstances his anonymity should be forfeited for the sake of ensuring his early arrest. 
 I strongly feel that there are powerful arguments—and they certainly seem to have registered outside the House among the public—as to why defendants should have anonymity. There are then arguments about how long they should have anonymity for. Because of the way that the Bill has come to us from the House of Lords, we are really talking about anonymity between charge and conviction or acquittal. 
 There are arguments—I gather that the Home Secretary is taking an interest in the matter—that the principal mischief lies not in the trial process, but in the period prior to charge, and I do not think that that period would be covered by the Bill. Perhaps the Committee should consider that, although drafting such legislation could be difficult. I have heard it suggested that the Home Secretary wishes to come up with a formula by which the police agree not to tip off journalists about investigations of individuals suspected of sex offences. 
 I have no idea whether that approach would be successful or not, but I am not optimistic. I am afraid that there is a long history of the police tipping off journalists—often, I suspect, for reward. It is a scandalous situation, but one that I believe is very difficult to control. The only way to exercise such control would be to restrict publication; the reality with anonymity in any case is that there will always be people involved in the case or close to it, or relatives or neighbours, who know very well that a person is about to stand charge for a rape allegation. That certainly happened in the 1980s; anyone sitting in court would have been likely to find out. However, the absence of publicity was certainly very helpful in enabling someone who had been acquitted to rebuild his life. 
 While I understand that the Government are unsympathetic to the Lords amendment and wish to delete it, for my part I am broadly somewhat sympathetic to it and would like to see whether there is some way by which the spirit or intention of the clause could be retained. 
 There are two ways in which that could be done. The first is amendment No. 23 and the second is amendment No. 24. Amendment No. 23 would retain 
''a right to anonymity, from initial accusation to conviction''—
 so the anonymity would apply beyond charge— 
''unless at any time between charge and conclusion of the trial a circuit judge directs otherwise.''
 That would make allowance for the exceptions, which I fully acknowledge might arise, either because of a defendant's behaviour—running away, failing to surrender to bail—or because the prosecutor could go to the judge and say, ''This is a very unusual case. We are satisfied that at least four people have now 
 made allegations against the defendant. We believe that publicity, because of the nature of his offences, might well attract more. It is an unfortunate matter, but could we please be allowed to reveal his identity?'' I would be perfectly prepared for a judge to perform such a balancing exercise. 
 The second amendment, amendment No. 24, is an alternative. The intention is that it might provide—although I suspect that because of the way it is drafted it would not provide—the possibility of having anonymity between the time that the investigation commences and an allegation is made, and charge. 
 I look forward to hearing not only the Government's position on clause 2, but their position on anonymity generally. At the moment, the amendments have been put forward in, I hope, a conciliatory spirit and I hope that the Committee will be able to grapple with them. It is a very important topic. 
 If we get no joy from the Government on the issue, we may be minded to resist the deletion of clause 2, because it is an issue of great importance. However, I am also willing to listen carefully to what the Minister has to say, and to other Committee members who have arguments to the contrary. I am already well versed in such arguments; I have had an interesting e-mail correspondence with the hon. and learned Member for Redcar, which was published in somewhat truncated form in The Guardian. The arguments that she put forward are valid; I make no attack on their validity. Equally, however, I believe that there are arguments to the contrary.

Annette Brooke: I hope, Mr. Gale, that it is in order for me to address new clause 1 first.

Roger Gale: Order. Absolutely, but the two amendments and new clause 1 have all been taken care of.

Annette Brooke: I did not want to incur your wrath, so I thought, Mr. Gale, that I had better check first.
 Clause 2 is unsatisfactory, but we still wish to address the question of anonymity. We found that it was difficult to table appropriate amendments. Our preference is for new clause 1 to replace clause 2. We have reached that position by examining all those arguments—one listens along one route and it sounds very convincing, and then one listens along the other route. There is a balance to the arguments but the balance tips in favour of anonymity up to the point of charge. That is the point that we want to make comprehensively. 
 With its reference to ''rape etc.'', clause 2 has a fundamental weakness, whereas our amendment covers the whole range of sexual offences. Once one gets into the realm of sexual offences against children, there is considerable support among a range of bodies and people for anonymity up to the point of charge. For that reason, we hope that the Government take on board the spirit of our new clause on Report. 
 We have deliberately referred to publication, and the position of the press and the media. We understand that one problem with the previous 
 legislation on anonymity was that the police felt constrained and not always able to pursue all their investigations. That is another point that could be used for the argument on the other side. The more positive argument on that side is the need for names to be publicised so that other victims come forward. That is far more pertinent after the point of charge, and it is fairer than allowing someone to be judged by the media before they have been charged with an offence. 
 That approach allows the police to pursue their inquiries. It could be amended further to allow a special court application for the lifting of reporting restrictions if, as in an example that was mentioned yesterday, it is feared that someone dangerous has absconded. Equally, the clause could be extended to include special circumstances and a special application for anonymity beyond the point of charge as determined by a judge. We have made the new clause as simple as we can in the hope that the Government will respond to our points. 
 There is considerable sympathy across the board. The Minister has said that he has been in discussions to obtain voluntary agreements, so there is a strong desire to achieve anonymity before charge in many cases.

Julie Kirkbride: Maybe I am missing something, but it seems that to do as the hon. Lady suggests and give anonymity before charge ends up with the worst of all worlds. Reporting restrictions before someone has been charged are such that the press can barely say anything other than that someone is being investigated for an offence or has been arrested in connection with an offence. A very limited amount can be said about that person's potential criminal offence. The big problem is the embarrassment factor that causes upset to people when the court case goes into great detail. At the same time, because there is anonymity, other people who may have been raped by that person will not know to come forward because they will not know that the person is being charged with that offence. Therefore, anonymity would inhibit the police's ability to gain evidence to secure an ultimate conviction. I should be grateful for an explanation of why I am wrong in those respects.

Annette Brooke: I thank the hon. Lady for her intervention, but I am not quite sure where it leads. If the Conservative Front Bench were to push for a vote in relation to amendment No. 24, which calls for anonymity up to the point of charge—merely in relation to ''rape etc.''—at this stage we would support that, simply because we want to put a marker down to show that we support the approach, if not the exact wording.
 There are many valid arguments and we are striking a balance between the pros and cons along the line. One of the cons of allowing full reporting pre-charge is that an innocent person can have their life destroyed, and that is not usually the presumption of British justice. The Metropolitan police service presentation showed that the police are particularly concerned with situations involving sexual offences against children because of the potential public reaction, even when a charge has not been laid. 
 The downside of any anonymity is the argument, which I know that other Members will put, that it inhibits other people from coming forward. That is why, at this stage, we do not support amendment No. 23 from the Conservative Front Bench. We are looking for a balance. I hope that that answers the hon. Lady's questions. 
 I want to emphasise that the Liberal Democrats think that it is wrong to delete the clause and have nothing in its place. We must take into account the power of the media, the state of today's society, the fear and the way in which innocent people can be persecuted and may even have to assume new identities, with no chance of being acquitted and showing that they are totally innocent either. Sexual offences in particular affect future life chances in relation to jobs. I accept that there is still an argument about whether there should be anonymity up to the point of charge for all offences. Again, we are talking about balance all the time, and that is why we would prefer to stick at the point of charge and make that starting point.

Chris Bryant: Earlier this year, the Select Committee on Culture, Media and Sport produced a report on privacy and media intrusion. Time and again, it found that the police play a wholly counter-productive role in the process—as the hon. Lady will acknowledge. It is somewhat uncertain exactly what law they are breaking, although they might be breaking their own terms and conditions of employment. The police will frequently announce to the media that they are going to visit, for instance, Matthew Kelly and the media will be there in an enormous scrum. However, I do not see that the answer lies in the prescription that the hon. Lady suggests. Can she suggest other ways in which we might move forward?

Annette Brooke: I accept that we need to debate the issue fully. I have had more reassurances in terms of the talks that have been progressing with the police and the Association of Chief Police Officers on discipline. The police sometimes need to use the media to help, in which case we could just make the appropriate amendment, and they need not be inhibited by fear of coming up against legislation. However, the point must be made really clear in their terms and conditions and in relation to their professional conduct. I feel that the Government are working towards that and I hope the Minister will tell us more. I certainly read in the press that the police themselves could be bringing in stronger disciplinary measures. In the Matthew Kelly case, I believe that the tip-off came from a potential victim's family and not the police. That goes to show that we should not place all the emphasis on tackling the police. Our media restriction would tackle the matter. Sometimes, in very sad circumstances, even the family—amazingly—will sell a story. At one point, I had the sad situation of having the youngest father in England living in my constituency. I heard that it was the family who sold the story to the press, which is staggering. We must look beyond the police. Voluntary discussions with the media and the police will never be enough because of that other link. As far as the media are concerned, it is
 so much better if a voluntary agreement can be achieved, but if there is a good story that will mean high sales and a real coup, will a voluntary agreement ever hold for 100 per cent. of cases? High-profile cases may make us think that we have to do something, but meanwhile someone else's life may have been destroyed. I have read somewhere about the ''stand back and give it a try'' argument for voluntary agreements, and that is quite seductive. However, the problem is that someone might be severely damaged before that.
 Another possibility is to include in the Bill a fallback position similar to that which we are proposing, should voluntary agreements not have enough teeth. However, that is not my preference. If amendment No. 24 were pressed to a vote, we would support it because the amendment supports the principles for which we are arguing.

Humfrey Malins: This is, I suspect, the most important debate that we shall have today and it is on a vexed subject indeed. We all have to acknowledge the basic principle that our criminal justice system operates, and has always operated, on a principle of openness. That is as it should be.
 I want to try to address a really nasty mischief that troubles us all. What is it that makes us angry, and what problem are we trying to address? It is this: the case of a person who has not been charged with a criminal offence but who has been taken in for questioning by the police, a fact which, as well as many other surrounding allegations, is publicly printed in the media before the person is charged; and who is never charged because there is no evidence to substantiate a charge. That person's name is mud from then on—mud sticks. 
 When I read in the paper that X has been charged with an offence, I do not feel the same anger at reading it. When I read that someone has been convicted of an offence, I do not feel the same anger. I feel desperately angry when I read that someone has been taken in for questioning, and then read over a period of two or three months various salacious articles about what might or might not have happened, even though the person is never eventually charged. They are as innocent as anyone on this Committee, but their reputation is blacker. I do not like that situation one bit. That is the real mischief that angers me. 
 We all know examples. A few years ago, a Member of the European Parliament known to me was at Heathrow airport when he was found to have in his possession a very small amount of a low-level drug and a magazine—not a happy magazine. I think that that was the case. I will tread carefully when I tell the story but I think that I am right and that that is what happened. The next day it was all over the press. How did it get there? Did Customs ring the press and say, ''Guess what? We've got a celebrity and something to be said against them. Would you like the story''? Was it the police? Let us work on the basis that it was not the man himself who rang the press. It follows, as night follows day, that it was one of those other bodies. It is a really scandalous thing to happen.

Chris Bryant: It is indeed scandalous, and what is also scandalous is that many of the national tabloid newspapers have a standing arrangement whereby they will provide money in exchange for information of such a kind, as has been admitted before the Select Committee on Culture, Media and Sport. Knowing how to deal with that is, however, much more difficult.

Humfrey Malins: I suspected that money might have changed hands. The hon. Gentleman has heard evidence to that effect, and can confirm my suspicion. I regard that sort of activity by anyone in authority, whether a member of Customs or the police, as so disgraceful that if I, personally, had such a person before me on a criminal charge of having acted in such a way, I would have little hesitation in giving out a condign custodial sentence straight away. It is an absolutely wicked thing to do.
 Incidentally, I think that the Member of the European Parliament in question—I am sure I will be corrected if I am wrong—was never charged with anything: a career ruined for a wonderful story over a couple of days. We know about other cases, some including former hon. Members, as well as many others who I do not think have been charged with anything, but the tabloids have run the stories. It is a mischief that must be addressed harshly. If anyone thinks that voluntary codes of practice work, I have never known one to. If anyone thinks that anything other than the heavy hand—by which I mean the heavy hand in a big way—will work, I think that they are in cloud cuckoo land.

Sandra Gidley: I have been listening to the hon. Gentleman with some interest, and I have great sympathy with his arguments. Will he also accept that it is not just the celebrity that suffers? A case has recently received a lot of attention in my local media. A schoolteacher was accused by a young boy of certain acts, and that was heavily reported. The schoolteacher, a headmaster, has now disappeared, and no one knows where he is. That sort of thing puts an intolerable burden and strain on families. The teacher—if he has not committed suicide, which is the fear—will never be able to teach again. It is not just the high-profile cases that we must be concerned about, but all cases, particularly when people work with children, as children these days are very aware of how they can cause maximum damage to other people's lives.

Humfrey Malins: The hon. Lady refers to an interesting case, and is quite right. It is not just celebrities who are affected. I was going to refer—I wonder whether it is the same case—to something I read the other day. A head teacher had, I think, killed himself facing that sort of charge. I pause to add that a schoolteacher whom I knew at my old school, and my son's school, was lifted by the police six or seven years ago on suspicion caused by some videos. He was a wonderful man in many ways. He never lived to be charged. That is the area in which I think there is the real mischief.
 Where do we have problems? We have big problems, because if I propose anonymity for a defendant, under what offences do I think that a defendant needs to be anonymous until charged? Such scenarios are difficult. Many allegations, if made against you, Mr. Gale, me or any of us in 
 Committee, could be frightfully damaging to us. Let us assume that I am a defendant in a rape case. It would be nice if I were anonymous until I was charged or convicted. How would I feel if I were taken in for questioning on charges of indecent assault on a child or an adult? How would I feel if I were taken in for questioning about paedophile offences? How would I feel if I were taken in for questioning about computer pornography? ''Am I limiting myself'', I ask rhetorically, ''to allegations of a sexual nature?'' I ask the Committee whether that is the real mischief. Do I deserve some anonymity in relation to any or all of those offences, or none? 
 Would I be similarly ashamed about the stigma and the mud sticks argument? Would I be badly placed if I were taken in for murder or for the armed robbery of an old lady? I do not know the answers to such questions, but they are fair questions to ask. I am asking them of myself because I do not have to answer them.

Chris Bryant: In which case, I may as well ask the hon. Gentleman an explicit question. Clearly, the amendments suggest that such matters should apply only to one specific set of criteria, not the whole of criminal law.

Humfrey Malins: I shall put my answer in brackets, given that people in certain positions in society may be hit more heavily by an allegation—whether or not charged—than others in society. My best answer to the hon. Gentleman is that, for the purpose of my argument, I must limit the issue to rape, although I recognise that the problem area is wide.
 I refer to the critical mischief, which is caused by the revelation before being charged that I have been taken in for questioning, and the evil of the publicity of such action. The whole issue of anonymity has changed over the years. In 1976, there was anonymity for the defendant in rape cases. Section 6 of the Sexual Offences (Amendment) Act 1976 states: 
''After a person is accused of a rape offence no matter likely to lead members of the public to identify him as the person against whom the accusation is made shall either be published in England and Wales in a written publication available to the public or be broadcast in England and Wales except . . . as authorised by a direction'',
 or after the person has been convicted. That was the law in 1976. I suppose that the idea was to provide a level playing field between complainants and defendants, and to ensure that the accused did not have to suffer the social stigma that can arise from an allegation of rape. After the ghastly Morgan case, Mrs. Justice Heilbron recommended that complainants should also be anonymous. Part of her reason for that action was to encourage more complainants to come forward in rape cases. Whether that has happened, I do not know. I doubt it. 
 The other reason to recommend anonymity for complainants was the stigma that was caused. In effect, a level playing field was created for the defendant and the complainant. It was abolished in 1988, because Parliament decided that the defendant in rape cases should not be treated differently from any other defendant in a criminal case. Parliamentary 
 moods change every 10 or 15 years depending on what is going on in the society in which we live. When the anonymity rule was abolished for defendants, it was felt that a not guilty verdict should be fine to acquit a person of the stigma. 
 In conclusion I ask, are the current rules satisfactory? No, they are not; they are wholly unsatisfactory.

Hilton Dawson: Does the hon. Gentleman agree that, far from convincing the Committee, he seems hardly to be convincing himself of the strength of his argument? The problems that he outlined do not seem to lie with anonymity or the fundamental principle of justice being open, but with the way that the press and some of our public servants operate on confidentiality. If there is a serious problem, we should address those issues rather than that of anonymity for defendants in rape or other cases.

Humfrey Malins: The hon. Gentleman kindly points out that I appear not to be persuading myself, never mind the rest of the Committee. If he knew me better, he would know that I sometimes have a slightly self-deprecating style. I work on the basis that I do not have to shout terribly loudly for my views to be considered sincere.
 I have to come to a conclusion, and like the Select Committee on Home Affairs, I must somehow reach a balance. I feel very strongly indeed—I must try to impress upon the hon. Gentleman how strongly I feel—that the mischief that I spoke about earlier concerning what happens pre-charge must be addressed meaningfully. I also believe in the principle of openness, but I believe in equality under the law for both the complainant and defendant in a rape case. I appreciate that there are many different sorts of rape cases in which such issues are relevant, and that is why I argued against myself earlier. However, the same anonymity as currently applies to the complainant in a rape case, which lasts until the end of the trial with the leave of the judge, should apply to the defendant, undoubtedly until charged and probably until convicted. After that, matters would be different. 
 That is where I have arrived, by a circuitous route and having taken into account all the points that have been and will be made against me. I will listen carefully to how the Government approach the subject. I know that they will approach it genuinely, but, like my hon. Friend the Member for Beaconsfield, I will reserve judgment. I hope that the Government are able to satisfy us before we decide whether to press the amendments to a Division.

Vera Baird: I thought, right up to the last minute, that there was no need for anybody to deal with the tit-for-tat argument, which was rejected by Heilbron in 1976. As the hon. Member for Woking said, anonymity for defendants came into force at that time but it was in the teeth of what Heilbron said. She was completely against it on the basis that the tit-for-tat argument was poor and did not merit further consideration. In 1984, the Criminal Law Revision Committee agreed with Heilbron and said that that provision should never have been in place. It agreed
 that the tit-for-tat argument, despite its superficial attractiveness—I am not being personal—was not valid, and it is not.
 The hon. Gentleman is a lawyer, and he knows that the difference is that, if one does not give anonymity to complainants and witnesses, they do not come forward and they receive no justice. The more vulnerable they are, the less likely they are to come forward and the more they need the protection of the system. That is not the situation for defendants. 
 It is by no means limited to cases of rape or sexual offences that complainants or witnesses are given anonymity. Although there is a blanket provision in rape cases, anonymity is frequently given under the special protection measures in the Youth Justice and Criminal Evidence Act 1999 to all kinds of complainants and witnesses to try to ensure that they come to court. 
 In many other kinds of case, even before that Act, there was a real possibility that people would be allowed to give evidence from behind screens and that their names would be left off witness statements. Such people are given anonymity for the same reason: because they have to be persuaded to come to court. It is even more the case that rape complainants have to be persuaded to do so, as has been canvassed effectively. There is simply no equivalence to be drawn between the defendant's position and the complainant's. 
 I refer to Heilbron because, of all the hon. Members who have spoken, only the hon. Member for Beaconsfield and the hon. Member for Woking have pointed to rape as a special case for anonymity. The Liberal Democrats' arguments applied to every offence. All they seemed to be saying was, ''We've got to start somewhere, and it might as well be here, because that is what the legislation is about.'' That is not a good argument.

Annette Brooke: I should perhaps mention that we were supporting the Home Affairs Committee investigation into the issue; the Select Committee came up with that recommendation. We were not just plucking it out of the air. It came to the conclusion that, on balance, there is an argument to be made. Of course, the Select Committee also considered the special case of abuse in children's homes. It considered that question for defendants, and in relation to pre-charge, too. There has been considerable concern about the subject of sexual offences. I could well be persuaded with a promise of anonymity until a charge is made for all offences. That is something comprehensive that I would accept.

Vera Baird: I am grateful to the hon. Lady for clarifying the basis of the Liberal Democrats' thought. The Home Affairs Committee thought on balance that there should be anonymity until charge, but it was only considering the Bill. The question is whether we should accept that or think more widely, and it is obvious that we have a general duty to the public to think more widely.
 The hon. Member for Beaconsfield suggested that between 1976 and 1988—the relevant report was made in 1984, but the law was repealed in 1988—there were no problems with anonymity. That is not right. It was seen very widely as a slight to complainants in rape cases. It will inevitably look that way, because it is the only kind of offence in which one says publicly, ''This complainant is so little to be relied on that we expect the defendant to be acquitted, so we are giving him extra protection against false publicity, as he is almost bound to go free.'' That is a slight and suggests that complainants in that kind of case are, more frequently than in any other, making a false case.

Dominic Grieve: Will the hon. and learned Lady give way?

Vera Baird: I will, but may I finish my train of thought first?
 It is a long time since that was an acceptable approach to complainants. I do not want to paraphrase the exchange in The Guardian any further than this, but the hon. Gentleman will recall that the 1970s were a time when rape complainants—and they were exclusively women—were considered so unreliable that their testimony had to be corroborated, or it could not be relied on by a jury. Very few women brought complaints of allegations against partners or former partners because it was almost impossible to get a conviction of that kind. The hon. Gentleman will also well remember that, in the 1970s, it was not even an offence for a man to rape his wife. Allegations brought against people by their partners or ex-partners were rare indeed, because the principle in those days was that a woman had nothing to complain about if a partner forced sex on her. 
 Happily, the atmosphere has changed, and the slights, the need for corroboration, the availability of a woman to a man once she married him, the inability to complain and the anonymity have rightly all gone. They should have gone many, many years ago.

Dominic Grieve: I, too, do not wish to revisit the entire correspondence, but in the 1970s there were far fewer allegations of rape—admittedly for the reason, which I fully accept, that doubtless many cases were not brought at all. However, the fact remains that, notwithstanding the anonymity, the conviction rate was considerably higher than it is today. I understand the hon. and learned Lady's point about a possible slight to the complainant, but we are here concerned with outcomes, and anonymity in the 1970s cannot be shown significantly to have diminished outcomes. Since anonymity was abolished, outcomes have declined progressively.

Vera Baird: What anonymity almost certainly did was to play a part in the other slight to the complainant in the 1970s: ensuring that very few complaints were made. The hon. Gentleman knows well that the number of complaints has risen quite enormously since that time.

Harriet Harman: May I intervene on my hon. and learned Friend to put a point that bears on the hon. Gentleman's intervention? He said that outcomes have worsened. Does my hon. and learned Friend understand it to be the case that the reporting of rape
 has gone ahead of the increase in convictions, so that the number of convictions as a percentage of reported rapes has gone down, but the actual number of rapes brought to court and the actual number of convictions has gone up? Perhaps we should be encouraged by the increase in the numbers prosecuted and numbers convicted, but recognise that the number of allegations is moving ahead of that. The outcomes have not got worse, but we should like them to get even better. Is that not the case?

Vera Baird: It is the case, but the other point, which is wrapped up in what my right hon. and learned Friend has just said and implicit in my remarks, is that women did not complain about partner and acquaintance rape in the 1970s, primarily because rape by a partner was not seen as rape because of the rule about married people. What they complained about was stranger rape, so of course the conviction rate was higher: cases of stranger rape are relatively easy to get convictions in. The proportion of stranger rapes resulting in convictions has remained pretty constant. What has led to the decline in the conviction rate is the increase, which it is vital to encourage, in complaints of allegations against partners or former partners. With respect to the hon. Member for Beaconsfield, he has proceeded on a completely false basis.
 I have dealt with the hon. Gentleman's first argument that we have taken this measure before with no harm. His second argument is that the low conviction rate means that rape is a special case and people have to be given protection if they have a greater potential to be acquitted. I regard it as an irony, and a cruel one, to use the low conviction rate as an argument for anonymity specifically in rape cases. Happily, the inspectorate of constabulary and the inspectorate of the Crown Prosecution Service last year confirmed many of the things that feminists and women's campaigners have been saying for many years—notably, that the principal reason why cases do not get to court and reach conviction is that the criminal justice system does not give complainants enough support. 
 That is a broad way of putting it. At the beginning, women have to go to police stations and complain and, if there is no sexual assault referral centre, take their chance with who is on duty, with how long they wait in the waiting room, with what the forensic medical examiner is like and with how long he takes to arrive. By then, they may have thought, ''This is appalling. If they are not going to give me any more support than this, I'm going to go no further''. The issue then moves on to how the police have historically investigated, thinking that, as there is a 7 per cent. conviction rate for rape, they will not bother with this one or try very hard because it will just go into the dump of acquittals. The Crown Prosecution Service is similarly guilty—of not getting the police to reinvestigate and not considering all the evidential position. All that has now been discovered, and all the agencies are trying to remedy it.

Dominic Grieve: I agree with every word that the hon. and learned Lady says. She knows that I welcome any
 steps that are taken to facilitate complainants bringing their complaints and getting them taken seriously. That brings cases to trial and ensures that juries can make decisions. One must also accept that sometimes there will be evidential difficulties that will lead to acquittal, although that is not the fault of the complainant. However, I do not understand how the arguments that the hon. and learned Lady advanced, which I endorse and support, affect the anonymity of the defendant—that issue could go hand in hand with all of those.

Vera Baird: With great respect to the hon. Gentleman, they do affect the anonymity issue. Since the report drew the attention of all the agencies to the lax way in which they were pursuing trials, everybody, including the police, the Crown Prosecution Service, the courts and lawyers, has made the maximum effort to give support to complainants to encourage them to come forward. It is important that they do that and that the conviction rate increases. The hon. Gentleman proposes to do the opposite. He seeks once again to stigmatise complainants as a category of person who is not likely to be believed, or whose complaint is not likely to result in a conviction.
 It is odd to stigmatise the people who need support with their allegation by saying that Parliament thinks they are not likely to get a conviction from their complaint and, as a consequence, that the man against whom they have made an allegation is different from any other kind of criminal justice defendant and needs special protection against unjust adverse publicity. That is an odd way of trying to increase the conviction rate, which everyone thinks is a good thing. That is a good reason and a major argument for why anonymity for the defendant must not apply only for rape and other sexual offences. To do that would run against everything that all the criminal justice agencies are trying to do to support and to encourage people to be confident that they can come forward and be looked after. 
 A further point, which was made by the Liberal Democrats, is that other witnesses come forward when publicity is attached to a charge. That happens very often, although not exclusively, in rape cases, because women on their own often do not have the confidence to speak out, particularly if the individual concerned is in a position of authority over them, or is more senior. When women appreciate that somebody else has spoken out, they get the confidence and they are galvanised to do the same. 
 It is impossible to legislate for the anonymity to be lifted so that other witnesses could be sought. I know that the hon. Member for Beaconsfield has considered that, too. One cannot know of the defendant has previously assaulted other women. Many rapists are serial offenders who form relationships with women—indeed, many offenders form relationships with vulnerable women. The fact that the guy was in a relationship with a complainant is no guarantee that he is not a serial rapist and nor that the woman who first complained does not need the help of other complainants to support her. It is difficult to legislate for anonymity to be lifted in such a way, because it is not known in which case it might be needed. 
 I am sympathetic towards a person who is charged and acquitted, but I do not think that saying his life is ruined is anything other than hyperbole. The most recent examples have demonstrated clearly that, although it is appalling for the person at the time, as soon as he is acquitted all the public sympathy turns against the person who accused him and is directed towards him, saying what a dreadful time he had. That is straightforward and plain. Frankly, people are fairer than Committee members are giving them credit for.

Chris Bryant: I agree with my hon. and learned Friend in relation to cases in which people know that an acquittal has happened. However, the tabloid press have often let us down by reporting allegations at great length but not reporting an acquittal in anything more than a single sentence. A degree of prudence and responsibility is required from the newspapers, but it is difficult to see how that could be enforced.

Vera Baird: I take the point, but in the case that we have been talking about the acquittal has almost had more publicity than the initial allegations. The iniquity of the acquittal is what has given rise to this Committee debate and to the public debate. The debate is not against the defendant, but against rape complainants as a general category, who because of that case all of a sudden are again seen as a mischievous bunch of women. That is what the debate is a cipher for.
 However, if I am wrong and Opposition Committee members are right and it is still agony for a defendant beyond an acquittal, then that agony is not confined to rape cases. Imagine if the two people accused of the Soham killings had had all the publicity but were never charged. They would be in a dreadful position; their lives would have been ruined, but they would have had nothing to do with rape. As the hon. Member for Woking said, there are many horrible offences; one just has to let the imagination run riot. 
 Having sex with an animal would be a horrible allegation; a person alleged to have done that would want to be anonymous. A person alleged to have beaten up an old lady and taken all her money would also want anonymity. The simple position ought to be that nobody should be named before they are charged. That is absolutely clear, because there is no certainty even about an allegation before a charge is made. 
 Such a position on anonymity must come soon but it would not be appropriate to confine it to rape. If it were confined to rape, one would have the two problems that I have set out clearly: other complainants would not come forward and those who have would be have the finger pointed at them as unreliable people, based on whose allegations Parliament thought convictions were unlikely. They would be undermined, and the provision would have the opposite effect to that which we are trying to bring about.

Humfrey Malins: The hon. and learned Lady makes a powerful argument but she must accept that there is room for two points of view, not least because the Labour-dominated Home Affairs Committee
 appeared to take a view different from hers; it looked at the matter very carefully.

Vera Baird: I do not accept that there are two equally valid conflicting arguments. Public policy requires that we encourage rape complainants to complain; the hon. Gentleman's view would get in the way of that for no reason. What one could do perfectly simply, if it were desired, would be to stop publicity in relation to all crimes; rape would be covered. The Home Affairs Committee was looking only at the Bill and it came to its conclusion on balance. We should look at the wider [octire. Of course, no argument of that kind was levelled to the Select Committee: it read the arguments put before it, and none were put to it as well and openly as they have been canvassed by all sides today.
 The position that I suggest is a clear one: having anonymity would be damaging to all the effort that the Government and the public agencies are putting into increasing the number of rape complainants who come forward and of convictions. In addition, anonymity would stop other cases from being brought. I invite the Government not to accept any of the amendments or new clause 1 and to dispense with clause 2, which is absurd as currently drafted. It would give a thrice or four-times-convicted rapist anonymity until the day of his death.

Chris Bryant: I do not disagree with any of the arguments advanced by my hon. and learned Friend; I merely want to add a couple of others. In response to the hon. Member for Woking, I would ask if there is not room for two points of view. There is room for a profound understanding of the problem as it affects those working in child care, youth work, schools and those who may have had their lives made difficult by vexatious claims. I do not think that there are two possible legitimate answers.
 In one set of proposals to deal with the problems outlined by the Opposition there is a suggestion that there should be anonymity up to the point of charge. There is no legal reason why there should be anything other than anonymity up to the point of charge. There is no reason why the allegations that have been made should be in the public domain at all, unless either of the two parties has told people. 
 We focused quite a bit on what newspapers, television and radio may do by way of publicising a case, or the allegations made against someone—as in the Matthew Kelly case—but in the community that I represent it is far more damaging for everyone in the street and the village to know that an accusation has been made than it would if an accusation were made in the Rhondda Leader. In fact, it would never appear in the Rhondda Leader as that newspaper has an exemplary record of making sure that vexatious claims do not suddenly appear all over the front page. The local police force has also been exemplary in maintaining the anonymity of all those accused of any crime up to the point that there is a case that needs to be answered and a defendant has been charged. 
 Non-publication, as suggested by the Liberal Democrats, does not guarantee anonymity. In many 
 communities in this country, the situation is not the same as it is in large metropolitan communities. In smaller rural communities where everyone knows everyone else's business, non-publication would make no difference to the anonymity of an individual or to whether that person felt that they had to move to another village. The two remedies that have been suggested simply would not solve the problem that hon. Members have raised. 
 The suggestion that there should be anonymity after charge seems extraordinary to me, not least because of the cogent argument put forward to those of us who were able to attend yesterday afternoon's meeting with the Metropolitan police. It would make it phenomenally more difficult for other people who had been raped to present themselves if they did not know that a charge had been made, or the name of the person charged. 
 In the main we have referred to cases of rape against women, but there are cases of rape against men and other abuse cases in which the same problem could be noted, and the same arguments could be advanced. If one's head teacher when one was a 13-year-old was charged with abusing five other boys in a school or care home and it was publicly known that he had been charged, that would make it more likely that one would understand one's past and feel able to come forward to make an allegation to the police. 
 I do not think that any of the remedies that have been proposed are right in principle, nor would they solve the problem that has been presented. As my hon. and learned Friend the Member for Redcar said earlier, all the arguments that have been advanced could be advanced in every other criminal case. I cannot see why if the problem applies to those accused of rape it does not apply to a defendant in a murder trial. If one is a City banker, one's reputation for honest dealing is probably going to be more harmed by an accusation of financial corruption. It is not legitimate to advance such arguments solely in the case of rape. 
 Rape may be thought to be a special case because such an act is thought of as sex, not violence. I refer to the sexual element—the taboo side of talking about rape—because it causes people to feel that the dishonour weighing on people simply because of their having to face such a charge in court is greater than the dishonour that is faced by those against whom other charges are made. That notion should not be upheld by the law. The wider population consider rape to be the act of a deranged stranger rather the act of someone who is known to the person who has been raped. People believe that a wholly different set of principles should apply to the defendant in rape cases from those that apply in other cases, but that is wrong.

Dominic Grieve: The hon. Gentleman is profoundly mistaken. The public at large clearly understand the distinction between rape by a stranger and the vast majority of rape cases. Indeed, if an allegation were made that a person had raped a stranger, but he was acquitted, I expect that he would be less tainted than he would be by the fact that such matters had caused intrusion into his private life, which the investigation
 of rape between two people with a history of sexual relations would cause. The public well understand such a distinction.

Chris Bryant: The public may understand that distinction, but the general assumption among the wider populace is that, when people talk about rape, they are taking about an act between two strangers. Furthermore, most people conceive of rape primarily in its sexual context rather than in relation to the violence that has been perpetrated against the individual. That is why I do not wish to draw a distinction between the treatment of defendants in rape cases and those accused of any other violent crime. Rape cases should not be treated differently from other cases.
 Yes, there are problems. We know that they exist in youth work in the United Kingdom. Some 20 or 30 years ago, some of the best youth work was done one-to-one. A single youth worker would work in a room with an individual child who was troubled. Such work is not carried out so much now because many youth workers are worried about the potential for allegations of abuse to be made against them. 
 I suspect that there is another problem in that the tabloid press still pays public servants, police officers, Customs officials and others for information far in advance of charges being made. By the time a charge is made, such matters are no longer newsworthy and of financial value. The solution to such problems does not lie in providing anonymity for defendants.

Julie Kirkbride: I shall be brief because obviously we want to hear the Minister's response to the issues that have been raised. By giving people who have been raped anonymity, we have recognised that there is a potential difference between rape and other criminal cases. In other circumstances, when people are accused of a criminal offence, independent corroboration is taken into account, such as missing money from a bank account or circumstances in which a person has been badly beaten or murdered. In the case of murders, DNA evidence gives rise to the strong probability of linking the people who are accused of the crime with their having committed it. Equally, there may be DNA evidence in cases of rape, but the issue centres on who is telling the truth about whether consent was given.
 Such matters are difficult to balance as we heard yesterday, when the police gave their excellent presentation. Those of us who are members of the Culture, Media and Sport Select Committee, such as the hon. Member for Rhondda (Mr. Bryant), know that newspapers are keen to publish all the grim details of every rape case that they can possibly claim is pertinent to their area. The national newspapers are particularly guilty of that. In difficult rape cases, a person can be severely damaged by the prolific detail of intimate events that took place between them and another person where there is a dispute about the facts of that particular case. The person making the claim is given anonymity but the person defending themselves against the claim is not. Although there is the possibility that that person is guilty, given all the difficult balances that one has to make, it is reasonable that they should benefit from anonymity. Subsequent 
 to their being found guilty, the whole case can be put on public parade for their humiliation and just desserts.

Beverley Hughes: The debate reflects the fact that there are no easy answers to the problems that we are discussing. All hon. Members are trying to find what they consider to be the best conclusion between some very acutely competing imperatives, which are inherent in those cases and, as I shall argue later, other kinds of cases. It is our conclusion that there should be no change in the law relating to anonymity. Amendment No. 42 would remove the clause 2, and we are resisting the amendments tabled by Opposition Members.

Roger Gale: Order. Amendment No. 42 has not been selected so the Minister cannot remove the clause. She will have the opportunity to achieve precisely the same effect when we vote on clause stand part.

Beverley Hughes: I beg your pardon, Mr. Gale. It was included on the informal list of amendments. I note that it was not on the formal selection list produced for the Committee, so I will restrict myself to some of the arguments that have been put forward.
 To respond to the points made by Opposition Members when they spoke to their amendments, the crucial question that must be answered is what is so exceptional about rape cases that it justifies anonymity for defendants? Apart from the hon. Member for Woking, all members of the Committee have recognised the importance of the principle of openness in the criminal justice system and that criminal justice should be executed publicly and should be seen to be executed publicly. It is right that that should continue to be our starting point. If that is the case, the crucial question is what is so exceptional about rape and other sexual offences that it justifies setting aside that principle?

John Randall: I require some assistance. Is rape the only offence in which anonymity is always given to the victim, or are there other crimes where that is also the case?

Beverley Hughes: As I understand it, the victim has anonymity in cases of rape, although in certain circumstances the judge can lift the restrictions on revealing somebody's identity.

Vera Baird: Other sexual offences are covered as well, but in addition there is a power, to which I alluded, that is often exercised by judges to give anonymity to complainants and witnesses in all kinds of cases.

Beverley Hughes: I was referring to adults because child victims would, of course, be covered.
 The critical question—what is exceptional about rape cases—needs to be answered, and it has not been satisfactorily answered today. Several issues have been raised during attempts to answer that question. Is the stigma associated with rape greater than that associated with other sexual offences or non-sexual offences, such as murder? I agree that there is an 
 impact on the individual of being charged with a very serious offence, or an offence that might not be regarded as so serious as rape or murder if it has connotations that reflect on the defendant's situation. If a bank manager is charged with embezzlement or if a politician is charged with taking money for questions, such charges fundamentally challenge the defendant's integrity as a person and examine their behaviour way beyond the norm to such an extent that it is perfectly possible to argue that the stigma associated with such offences and the consequences for people in terms of their livelihood are just as potentially serious as the consequences for people charged with rape. 
 The second argument put before us, by the hon. Member for Beaconsfield, is that the low attrition rate in rape cases makes it unique. I do not think that it is. If we look at other kinds of offence, particularly, arguably, sexual offences against children, we see that the attrition rate is as great if not greater, from the point of investigation through to conviction, as in rape cases. There is not an argument that rape is unique in the sense that a high attrition rate justifies the need for greater protection for defendants up to the point of either charge or conviction, depending on which amendment we refer to. 
 The hon. Member for Bromsgrove (Miss Kirkbride) argued that in rape cases there is often no corroborating evidence and that that makes a big difference. Again, there are other cases such as the sexual or physical abuse of children in which there is no evidence to corroborate the evidence of the victim him or herself. Therefore, if we want to go down the route of anonymity for rape cases, we must entertain the argument that the kinds of criteria being put forward by those behind that, apply equally to a much wider range of offences than rape or even a limited range of sexual offences. 
 A further issue is that to justify exceptional treatment, and anonymity, of defendants in rape cases might lead people to conclude that that is because there are many false allegations in rape cases, which also accounts for the high attrition rate and low conviction rate. I do not think there are Committee members who believe that. Clearly there is always the potential for false allegation and we know that it occurs. However, the general consensus here and outside the Committee is that the main reason for the low conviction rate in rape cases is not false allegation but the problem of securing a conviction in very difficult circumstances.

Dominic Grieve: I am grateful to the hon. Lady for giving way. I am bound to ask her, is not the difficulty that there are undoubtedly cases of false allegation? Examples have been well documented. Is not one of the key problems in doing justice in such cases that awareness of the existence of such false allegations—often in cases where essentially complainant must be weighed against defendant in the absence of the extraneous evidence so often needed to help reach a decision—almost certainly colours the views of juries in approaching all such cases? They have to be approached with great caution. Perfectly properly,
 juries follow the direction of the judge that they must not convict unless they are sure. Doing their job absolutely properly, they return acquittal verdicts. The problem is very difficult to get round.

Beverley Hughes: It certainly is, and it has been the substance of much of our debate and discussion in Committee today. We have acknowledged those difficulties and have tried to assist with them in formulating various parts of the Bill. I respectfully suggest to the hon. Gentleman that that does not constitute an argument in support of anonymity for defendants in rape cases at whatever point in the process. The arguments advanced have not made the case on what differentiates those cases to justify anonymity. In deciding anonymity, we must weigh up not only the interests of the individual, but the wider public interest in having a criminal justice system that is executed publicly and is seen to be executed publicly.

John Randall: I am being gently persuaded by the Minister's arguments, but I have one question. Bearing in mind what has been said, does she think that anonymity up to the point of charging for all offences—in such august company, I speak carefully on legal matters—would be a better way round the problem? There is obviously a big problem, but this might not be the place to deal with it.

Beverley Hughes: My hon. and learned Friend the Member for Redcar put that proposition. The hon. Gentleman will appreciate that if we were debating it, we would be debating one of the fundamental principles underlying our criminal justice system. We have not heard arguments today from those proposing anonymity in a limited number of cases—rape plus a few other sex offences—that they really want to change the basis of our criminal justice system. We must stick with the proposal that there is a justifiable case for anonymity for defendants only in cases of rape and of a few other sexual offences.

Dominic Grieve: I was slightly perplexed by the Minister's comments, unless I have misunderstood them. I thought that the comments coming from the Home Office over the past few days, which have received widespread publicity, were all about taking the opportunity of this legislation passing through Parliament to come out with some suggestions about how the anonymity of the wide category of those being investigated might be preserved. Have I wholly misunderstood the issue? The spin machine must be totally out of control if the media are picking up that message while the Minister is telling us that no such message exists.

Beverley Hughes: I will clarify that point in a moment.
 The crux of our argument is that the case for differential treatment of defendants in cases of rape and a few other sexual offences has not been made. As the hon. Gentleman said, there could be a less fundamental remedy. The amendments would also hamper efforts to encourage more victims—mainly women—to report sex offences committed against them. Furthermore, restricting the details proposed by the clause would also minimise the chance of other 
 victims of a defendant coming forward in the case of serial offending or to enable the police to identify crucial witnesses.

Sandra Gidley: Will the Minister give way?

Beverley Hughes: I will finish this point.
 It is important to note that when the restrictions were in place between the 1976 Act and their repeal in 1988, they caused practical difficulties, which were well documented. For instance, if a man escaped custody before conviction, the police could not warn the public that he was a suspected rapist unless the judge exercised his power to lift the restrictions.

Sandra Gidley: I, like the hon. Member for Beaconsfield, am slightly confused by the mixed messages coming from the Government. In a meeting prior to the Bill's commencement with one of the Minister's colleagues, prior to the Bill's commencement, we were strongly led to believe that the principle was accepted and that the Government would be working on voluntary agreements to effectively achieve the same things. However, the Minister is now putting forward strong arguments for not doing that at all.

Beverley Hughes: The hon. Lady did not really need to ask that question because the hon. Member for Beaconsfield has already asked it. I said that I would deal with it.
 I have been talking about the amendments before us, which propose the legislative route to dealing with a problem. We acknowledge that there is a problem. There are difficulties about publicity that need to be addressed. It is accepted that some defendants have been unfairly treated. The solutions that have been proposed so far, which I have been arguing against, would make it a criminal offence to publicise someone's name either pre-charge or pre-conviction. We are not convinced that it is right to use legislation differentially or to use the protection of the criminal law for defendants only in specific cases. However, there is consensus that we need to do something. The first option should be the non-legislative route to improving the situation pre-charge when a defendant is publicised inappropriately or prematurely. We believe that we should pursue the voluntary route not just, as the hon. Member for Romsey implied, for rape or sexual offences, but for all offences as a matter of principle.

Sally Keeble: Further to that, will my hon. Friend the Minister say whether the option of contempt of court legislation will be considered? That puts restrictions on newspapers reporting when it might prejudice a trial, and comes into effect as soon as it is thought likely that charges will be made. Presumably, that could be used more vigorously to control reporting that would have the adverse impact of the kind that the Minister has described.

Beverley Hughes: Certainly, if there were opportunities to enforce existing legislation more robustly and to good effect, as my hon. Friend suggests, we would look at that. The Under-Secretary of State, my hon. Friend the Member for
 Wythenshawe and Sale, East (Paul Goggins), has been pursuing the potential for informed and strengthened guidance for the police and the media. We believe that that is preferable to any change in legislation.
 The police code of conduct provides that information that comes into the possession of the police should be treated as confidential—there are no two ways about that. I am aware of the concerns that often that is not what happens and that information is given out in return for money. Information should not be used for personal benefit, nor should it be divulged to other parties except in the proper course of police duty. The code also demands that police officers have a particular responsibility to act with fairness and impartiality in all their dealings with the public and their colleagues, regardless of whether on or off duty. They should not behave in any way that is likely to discredit the police service. I agree that unauthorised disclosure of information on a suspect by a police officer is a disgrace; it is also likely to be, and should be, considered a breach of the code.

John Randall: Will the Minister give way?

Beverley Hughes: Let me finish this point. Such a breach means that an officer's conduct has not met the appropriate standards for the purposes of the police conduct regulations, and disciplinary proceedings can follow. An officer could face dismissal or even prosecution, depending on the circumstances of the case.

John Randall: Perhaps I should have been a bit more patient, because I think that I would have got my answer. I will add a supplementary question: is the Minister aware of any such proceedings being taken against any members of the police force in the past five years or so?

Beverley Hughes: I am reliably informed that that has happened and I am certainly willing to provide information to members of the Committee. That is certainly relevant.

Chris Bryant: I am delighted to hear what the Minister is saying, because members of the Culture, Media and Sport Committee have been banging on about the matter for the past few months, ever since the editor of The Sun confessed to us. The other side of the argument is, not only do police officers give evidence, but newspapers buy evidence from police officers. Will the Minister comment on that?

Beverley Hughes: May I clarify where we have got to with ACPO? Meetings have taken place and we have reached an agreement with ACPO that it will amend its media and disciplinary codes for all forces to give greater prominence to the rules that govern the release of information about anyone suspected of an offence, but not yet charged with it. We are working to ensure that the guidelines are consistently and robustly enforced. At the same time, Ministers have had discussions with media representatives to assess how unhelpful and intrusive reporting of such cases can be avoided, with a view to amending and strengthening
 the relevant codes of practice governing press conduct. A further meeting has been arranged and will take place before Report so that we can provide further details to Committee members about the results of those discussions and about how confident we feel that we can progress a much more robust approach and the implementation of stronger guidelines on the way in which the press deal with such issues.
 There is a precedent that might give Members some comfort about the effectiveness of such an approach. Members may be aware that, following the passage of the Youth Justice and Criminal Evidence Act 1999, agreements were successfully put in place with the press. They require anonymity for persons under 18—defendants, complainants and witnesses—who are involved in criminal proceedings. The relevant provisions in the Act have not needed to be implemented because those voluntary agreements have stuck, have been adhered to and have worked well. That may give Members some comfort that the route proposed in those cases can also be applied successfully in this case.

Annette Brooke: Can the Minister confirm that there are provisions in the Bill that she just mentioned should the voluntary agreement break down?

Beverley Hughes: The hon. Lady referred to the Bill.

Annette Brooke: I am sorry—the Act.

Beverley Hughes: The 1999 Act contains a possible power that has not needed to be switched on because the voluntary agreement has stuck.
 I will reserve any other comments for a possible stand part debate and simply say that, for the reasons that I have outlined, we will resist the legislative routes proposed in the amendments. I hope that Members will agree to see how we get on with pursuing the voluntary route as an alternative.

Roger Gale: Order. In the light of the Minister's comments, I should make it plain that, having listened to the debate for a considerable time, and having realised that the clause is very narrow, I do not propose to permit a stand part debate. If the Minister has more to say, she should take her chance and say it.

Dominic Grieve: This has been an interesting debate, and I thank those who have participated. I have certainly found it helpful in developing my ideas on the problem that we face. I fully accept that there are two issues under consideration. Although they are linked, they have a distinctive characteristic.
 The fact that we have been looking at sex offences, and the fact that changes were made in the other place to the rules of evidence on rape cases, brought several issues back to the fore: anonymity for complainants, the previous anonymity for defendants, and the recent cases that highlighted the damage that can be done to defendants in cases in which there is a prurient public interest and a great deal of surrounding publicity. 
 To pick up on an earlier point, sex offences—and not only rape; child sex offence allegations come into the same category—put a uniquely damaging taint, of a type greater than that associated with any other offence, on the defendant. That is just the way that the world works, and is how the media and publicity 
 work, too. I therefore think that they come into a particular category. 
 That said, I conceded at the outset of my arguments that I do not think that the Bill as amended in the other place was intended to be a fully formed piece of legislation. Indeed, Lord Ackner, in proposing his interesting amendment—which, perhaps even to his own surprise, ended up amending the legislation—was highlighting a concern. I have always accepted that clause 2 as drafted raises a number of problems, even for those who want anonymity in rape cases for defendants. 
 The other area that we touched on is anonymity in all criminal cases, but of a rather different kind, covering the anonymity in the period of investigation. I accept that those are two rather different issues, and that in a sense that second issue has been hitched on to the consideration of the Bill because, frankly, it provides an opportunity for considering the matter. If we did not take such opportunities, we would not have had the chance to explore the issue publicly. 
 I take all sorts of points that have been made. There are some in relation to rape specifically that I disagree with, and I do not want to go over the arguments again. I suspect that there are potential difficulties in granting anonymity to defendants in rape cases, and if we are to do so, I certainly accept that there are equally valid arguments for extending it to sex offences generally, and particularly to child sex offences. Obviously, that has not been done under the Bill. We might return to that on Report. 
 The hon. and learned Lady has raised a number of very valid points, but I am not persuaded that anonymity in sex offence and rape cases particularly will be so destructive to the process of justice. I do not share that view. She knows my opinions on that.

Sally Keeble: Will the hon. Gentleman give way?

Dominic Grieve: In just a moment.
 The fact that there are low conviction rates for sex offences—rape is one of them, but I accept that child sex offences are another—is something that can properly be taken into account by Parliament when bearing in mind the destructive effect of allegations being made. I must say that, having attended the Operation Sapphire briefing yesterday, I am not persuaded by the argument that the introduction of anonymity destroys the possibility of investigation. To begin with, I note with interest that the larger number of those in the Committee Room are willing to contemplate anonymity up to the point of charge for a wide number of offences, but that is precisely the period when the police are investigating an offence. They would, of course, respond if someone were to come through the door and say, ''I hear that Mr. So-and-So has been charged. I would like to tell you that exactly the same thing happened to me four years ago.'' As was conceded at yesterday's briefing, the police think that that is likely to happen in only a small number of cases. 
 I do not think that the interests of justice would be so severely handicapped by anonymity being granted 
 right through the trial process, for either rape or child sex offences.

Sally Keeble: Although there have been high-profile and spectacular cases in which people's rights have been severely damaged by publicity and the publication of information and allegations, does the hon. Gentleman agree that more people have probably been damaged by information being suppressed? Some of the biggest child sex scandals and incidents, some of which have occurred within the Church, have only come to light and been properly dealt with after high-profile campaigns reliant on the publication of allegations.

Dominic Grieve: The hon. Lady raises a huge topic and I am in danger of straying from what we are considering. We had an interesting debate on that in Westminster Hall some months ago, triggered by the hon. Member for Crosby (Mrs. Curtis-Thomas), and the simple answer is that it cuts both ways. The hon. Member for Romsey is right that child sex offences rely on the silence of children and often only emerge many years later. Unfortunately, there have also been cases in which serial allegations have been made by children who may have had damaged backgrounds and some have resulted in miscarriages of justice. It is a highly difficult area—as difficult, if not more so, than rape allegations. I accept the hon. Lady's basic premise, but there is another side to the issue.

Chris Bryant: Many Committee Members have mentioned the pain and dishonour caused to someone by an allegation against them of any sexual crime, in particular rape. Many women also have to suffer silent pain and do so for the rest of their life, because of the perception among them that they are unlikely to get a fair deal out of the trial system. That receives no publicity in the newspapers or elsewhere. If we were to provide anonymity for defendants, surely that sense would be increased rather than decreased. That would harm justice.

Dominic Grieve: I entirely accept the hon. Gentleman's first argument that large numbers of people will suffer as victims of crime—particularly sexual crime—from a sense of powerlessness that they will never be able to find redress. It is important that we consider that and investigate ways in which it may be possible to help. As I already said, it is unfortunately a difficult area because of evidential difficulties. Juries do not suddenly think that it is all right for women to be raped or children sexually abused, but it is often difficult to resolve the underlying issues and satisfy themselves that someone is guilty—the test that they are asked to apply.
 That said, I am not persuaded that anonymity for defendants plays a large role in giving complainants the impression that they are being neglected or that their allegations are not being taken seriously. When I considered the issues, it crossed my mind that if we had anonymity for defendants, the conviction rate might rise. The surrounding publicity creates an atmosphere that is not conducive to good decision making and may prompt juries to acquit more readily, because through the trial process, and surrounded by that publicity, their sympathy may move to the 
 defendant and prevent them from focusing on the facts.

Sandra Gidley: The hon. Gentleman raised an important point. Much has been made of the fact that any anonymity would be detrimental to complainants. The example of the 1970s and 1980s is often cited. Dose the hon. Gentleman agree that that was in a different day and age, when rape attracted a far greater stigma and women were less likely to come forward? He would probably agree that more women are currently encouraged to come forward. I do not understand how the anonymity of the accused affects that ability, or the woman's security.

Dominic Grieve: I agree with the hon. Lady; her analysis is correct. At one time, the rape of a person by a stranger in a lane would have been regarded as a terrible, abhorrent crime. I accept that in a previous time, when people's views of sexual mores were stricter and sex outside marriage was often regarded as something to be frowned on, a stigma was attached to a complainant. Of course, allegations of rape within marriage could not be made, because it was not possible to do so.
 The hon. Lady is right, but a revolution has taken place. One has only to consider public attitudes. I am confident that juries regard non-consensual sexual intercourse as a serious issue. I do not take the view that they would say, ''Oh well, that is the prerogative of young people. If they had all been drinking, it is six of one and half a dozen of the other.'' I genuinely believe, from everything that I have seen, that such matters are treated seriously. It is precisely because they are treated seriously that juries think long and hard about convicting, as my hon. Friend the Member for Woking said. The consequences are so draconian that juries follow the judge's directions to the letter. If they are not satisfied and they are unsure, they acquit, and if they are satisfied, they convict. In those circumstances, they expect heavy sentences to be meted out on those who have transgressed. I am confident that that is the current public climate, which is why I said what I did a moment ago. I was interested in the hon. Lady's response. Juries are always told that they must ignore all the surrounding publicity; they are told, ''Members of the jury, you must not be swayed by emotions, or by what you have seen in the newspapers. Please focus on the evidence.'' Oddly enough, surrounding publicity can be as adverse to the interests of justice in getting convictions as it is in getting acquittals. That is an argument in favour of anonymity that we might wish to consider. 
 I want to bring my remarks to a close and explain what I wish to do. There are two separate issues. The Minister and the Home Secretary have cottoned on to the argument building up in the national press, which has involved exchanges of e-mails between the hon. and learned Member for Redcar and I. They have come out with an apparently sensible line, saying that they do not think that they can do something about anonymity in rape cases and do not want to single out such cases. However, they acknowledge that publicity 
 surrounds the investigation of offences and want to come up with a blanket policy covering all offences to protect people at least up to charge. That is a good idea, although I am bound to say that I suspect that a voluntary agreement will not work. It will not work, because unless it is on the statute book and ready to be used as a blunt instrument to clobber the press, they will never stick to a voluntary agreement. It is not realistic simply to rely on the police not spilling the beans. They have been spilling the beans on that for a long time and that habit is institutionalised. 
 Notwithstanding the fact that I accept what the Minister said about confining anonymity to rape cases until charge, I still think that that is something worth voting on. It is something on which the Committee should have the opportunity to express a view. I want to press amendment No. 24, which deals with anonymity until charge, to a vote. 
 On the wider issue of anonymity in rape cases, there are arguments both ways, but I am mindful of the fact that the Minister will, in any event, have her way on the deletion of the clause. I accept that the clause is not satisfactory, and I have not tabled an amendment that I would regard as sufficiently satisfactory to replace it. I will not stand in the Minister's way on that, although I will not support her either. I will, however, go away before Report and see if there is anything else that we can come up with that might widen the scope generically on anonymity through the child process in relation to all sex offences, but I accept that it is a difficult issue. I would want to consult others before I did so. 
 I hope that by the time we come to Report, the Home Secretary, who seems to have picked up the public mood of disquiet on the issue perfectly accurately, will be able to come forward with some cogent proposals that might mean that we can have general agreement. I accept that we have used the vehicle of the Bill to raise some wider concerns. There is no harm in that: that is what Standing Committees can be all about. I am grateful for the opportunity to raise those concerns. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 24, in 
clause 2, page 1, line 17, leave out from 'enjoy' to end of line 18 and insert 
 'a right to anonymity until charged.'.—[Mr. Grieve.
] 
 Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 10.

Question accordingly negatived. 
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill. 
 Question negatived. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at seven minutes past Six o'clock till Thursday 11 September at ten minutes past Nine o'clock.